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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11361
Experience:  Licensed Texas General Practice Attorney
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My decree states that myself and ex wife get to choose two

Customer Question

My decree states that myself and ex wife get to choose two separate weeks of summer vacation and i have chose one week to fall during my sons birthday. Now the order also states that during birthdays the party that does not have possession of the child is allowed possession from 6-8pm. Now my question is if i have notified my ex in advance of my plans that can i be held in contempt of my order? The order does not state that we can not choose vacation on his birthday. It does state inability to exercise possession: each conservator is ordered ti give notice to the person in possession of the child of each occassion that the conservator will be unable to exercise that conservtors right of possession for any specified period. Does this mean that since i've given her notice that i am not obiligated to give her possession since it is my chosen and specified time with my son? Also her attorney states regardless of my plans i will be held in contempt my says other wise
Submitted: 3 years ago.
Category: Family Law
Expert:  Daniel Solutions replied 3 years ago.
Hello,
Thank you for allowing us to assist you with this problem. I am not fully aware of what prior steps you have taken.

Laws are different in each state so I need to know in what state was the court order issued?
Customer: replied 3 years ago.
Texas
Expert:  Daniel Solutions replied 3 years ago.
Thank you for the information.

Based upon what you shared with me, it is within your right to request the vacation time even during the child's birthday. However, you would have to give the mother access from 6-8pm during that time on his birthday. You would not be in contempt so long as you allow the mother access at that time period.
Customer: replied 3 years ago.
But given that it is my vacation and i will not even be in the same state how can i give her possession? Also what does this mean exactly: inability to exercise possession: each conservator is ordered ti give notice to the person in possession of the child of each occassion that the conservator will be unable to exercise that conservtors right of possession for any specified period
Expert:  Daniel Solutions replied 3 years ago.
Your order is very clear on the birthday issue. If you want to take him for vacation that falls on his birthday then you must allow her access with the child from 6-8pm. If you dont, then you would be in contempt.

The inability to take possession is a different but related issue. It requires the parent entitled to the possession of the child to give the other parent prior notice that he/she will not be able to take possession. In other words if you wanted to take vacation during the week of his birthday and the mother could not take him from 6-8pm on his birthday, then the mother should tell you in advance.
Also if the child would normally be with the mother during his birthday and you couldnt take him from 6-8pm on that day, they you should give the mother prior notice.
Customer: replied 3 years ago.
Relist: Incomplete answer.
Expert:  Daniel Solutions replied 3 years ago.

I see you are not happy with the answer I provided which is fine.

 

I am opting out of the communication so perhaps someone else can give you an answer that you prefer to hear.

 

Do not respond to this post as that will delay someone else assisting you.

 

Have a good day and I wish you well.

 

 

Expert:  ScottyMacEsq replied 3 years ago.
Thank you for using JustAnswer. I am a Texas attorney, and will do what I can to assist you. Can you tell me what additional information that you are seeking in regards XXXXX XXXXX the previous expert has already told you, so that I can better narrow down what specific information you would like to know?
Customer: replied 3 years ago.
Well my lawyer states we would not be held in contempt because it was never stated that we could not take vacation or leave for vacation during his birthday. Plus we are giving her well over a 6 month notice. Yet her lawyer states we will. It's a he say she say. What's the real answer.
Expert:  ScottyMacEsq replied 3 years ago.
each conservator is ordered ti give notice to the person in possession of the child of each occasion that the conservator will be unable to exercise that conservators right of possession for any specified period. Does this mean that since I've given her notice that i am not obligated to give her possession since it is my chosen and specified time with my son - This is sort of ambiguous, but what it most likely means is that when one person (the conservator) otherwise has a right to possession (either spelled out in the order or designated at a later time) but that person is unable to take possession (something comes up), that person will notify the other one (who actually has possession) of the first's inability to. So for instance, if she has possessory custody over the child, and you designate, say May 1 - May 8 to take possession, but on April 15 you're told you have to go out of the country on business, you will have to give her notice that you're going to be unable to take possession on May 1. This is to give the other side notice that you're not going to be showing up on May 1 (so they don't have to have the child ready, and to make other plans, etc...) The key here is that "consevator" means one person and "the person in possession" means the other (most likely).

In terms of contempt, judges will only hold someone in contempt if they are clearly violating an unambiguous order. Now it might be that the judge needs to clarify things, but this is not unambiguous to the extent that you'd be held in contempt, and a plain reading of the order (based upon what you have said) indicates that you can designate the time and places for your visitation over the summer, and when the 6-8pm provision talks about the other party being "allowed possession" (but not mandating that possession happen nor spelling out the place) then you can certainly do this, under the clear language of the order.

Now the only chance for contempt that I see is if this decision was made in bad faith. That is, if you made the decision to go on vacation specifically to interfere with your ex's rights of possession during the birthday, then the court could hold you in contempt. But it would have to find that you acted in bad faith, which I don't think they could show. All you would have to say is that you wanted to take your son on a vacation, either specifically for his birthday, or it just so happened that the vacation fell on his birthday.

My guess is that her attorney is trying to scare you, and that there's next to no chance that the judge will actually hold you in contempt. You can threaten contempt against her if she doesn't make the child available to you pursuant to the clear, unambiguous language of the order, which clearly you're complying with.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11361
Experience: Licensed Texas General Practice Attorney
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