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socrateaser
socrateaser, Lawyer
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I am providing a link to the amended motion received today.

Resolved Question:

I am providing a link to the amended motion received today. https://docs.google.com/file/d/0Bw_g9eJLQPfga1RlX3QzdWpfN3c/edit?usp=sharing

We have 50/50 verbal agreement on custody different than in the decree.Can they ask to modify that?I work and my ex does not so on Fridays/Mondays that she takes possession I drop kids that dont go to daycare at her house before work.I am thinking now she wants them with me till 5 but that is not the schedule we have followed.
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Read this rule from Travis County District Court.

The amended motion that you have been served is in direct violation of the rule, as it is filed and served less than two weeks in advance of the hearing without prior leave of the court. Therefore, you can march into court, explain that the motion is untimely served on its face (July 5), without prior leave of the court, and then ask that the court either strike the motion in full, and take the hearing on the original motion as filed, or continue the hearing until you have had the required two weeks notice, so that you can be prepared to fairly meet the issues and evidence on the merits.

Be prepared for a denial (not because you're wrong, but because the judge will be afraid to embarass opposing counsel for filing an improper pleading, in front of his/her client).

But, if you win, opposing counsel will be set on his/her heels, and you may have a lot better time going forward in the future.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

So if the motion holds what are my options for them trying to modify a verbal custody agreement? Can I argue that we need to have a formal custody agreement before we can start modifying it? Your thoughts?

Expert:  socrateaser replied 1 year ago.
My argument would be that there has been no change in circumstances, substantial or otherwise, therefore, the court is without authority to modify custody based upon the petitioner's grounds. See TX Fam. Code 156.101(a).

A child's enrolling in summer school for two weeks is not a material substantial change in circumstance.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Regarding Rule 166, when should i object? immediately upon the start of proceedings or after opening statements?


And regarding Rule 156.101A, same question as above.


 


Thank you.

Expert:  socrateaser replied 1 year ago.
Rule 166: Immediately at the commencement of the hearing, because you are trying to stop the hearing dead in its tracks (and embarass the cr** out of opposing counsel).

Family Code 156.101(a), you let counsel present his argument, and then you argue that nothing presented demonstrates a substantial change in circumstance, therefore, under Family Code 156.101(a), as a matter of law, the court must deny the motion.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
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Customer: replied 1 year ago.

The other hearings for motions I have been to are all a blur. Will the proceedings begin with an opening statement or will we go right into opposing counsel presenting their motion?


 


And you have been so much help. More than I could ever express. Thank You.

Expert:  socrateaser replied 1 year ago.

1. Parties and counsel are called to the counsel tables.
2. Petitioner's counsel will probably start to immediately present the motion.
3. If not, then you immediately say, "Your honor before we begin this hearing, I would like to call attention to the fact that... [166 stuff, that I wrote about previously]".
4. If so, then, you immediately say, "Excuse me, your honor, I must respectfully XXXXX XXXXX this hearing continuing because...[166 stuff)"

You have to be able to act like a lawyer, if you're representing yourself, and that means making certain that you are heard timely when you have something important to say. Worst thing that can happen is that the judge tells you to shut up. Even then, you can refuse to shut up long enough to make your statement that you have a legitimate objection to the hearing today, and that you should be heard immediately before the hearing continues.

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

In the motion they are requesting authority to sign him up but i have a suspicion that he is already signed up. Is this grounds to have the motion stricken?

Expert:  socrateaser replied 1 year ago.
No. If you make this an attempt to punish the child for the parent's lack of cooperation, you will be viewed as the "bad guy." You need to make this about one thing: the absurd request that you must bear the burden of lengthy transportation of the child during this very short period, along with your employment obligations, while the other parent, who is not working should be freed of the same obligation.

You need to be clear that you are not trying to avoid responsibility, but that the issue is trival/de minimis, and the mother is bringing the matter solely as a means of harassment. There is no substantial change in circumstances which mandates the hearing, and even if there is, the court should not start modifying custody where a simple order describing the parents' respective obligations here will suffice to resolve the dispute.

Hope this helps.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

First off thank you so much for all your help. I went into court today with a confidence I would not have had without your counsel. And it turned out great!!!


 


Let me say this first. This motion was all about a person who wants to have less responsibility and has no respect for the fact that I work 6 days a week and she has never had to have a job to support herself and has never worked in her adult life. She was making unreasonable demands on me because she did not want to have the responsibility that falls on her because she has no commitments at all.


 


The judge saw it for what it was and ordered standard possession for the summer so now she can not even call on me at all for any support of summer school/ summer camp etc not only for my oldest but all the kids. He looked directly at her and said you are now responsible the entire summer for transportation to daycare/summer school/YMCA doctors appointments etc. He then said to her after her jaw fell on the table, you have to understand this is an order of the court, no buyers remorse, you brought this here and you can not do anything but what the court ordered, you may not call on you ex-husband to help out with transportation at all it is all your sole responsibility, he has a job and is unable to do these things and keep his employment. He then looked at me and said, I am not punishing you. I responded with I know your honor. He then said just wanted to make sure you understand that. But with standard possession your child support will change. So It was a good day.


 


I already pay child support even though it was a 50/50 split before and she is a millionaire. I do have one question maybe you can help me with. With my job I get paid my hourly wage and EMA(equipment maintenance allowance) for the USPS. Does my EMA count towards child support figures or is it excluded?

Expert:  socrateaser replied 1 year ago.
Congrats.

Re EMA, if the amount you are being paid is actually necessary to reimburse costs which are ordinary and necessary to the production of income, then even though it would be income, you would be entitled to show your actual expenses and deduct those expenses from your EMA. Which hopefully, would yield a zero result.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I have another question for you. I have the final temporary orders and in the section on child support it states that if I die my estate is responsible for child support."support as obligation of estate"


 


Is that standard for SPO?

Expert:  socrateaser replied 1 year ago.
The obligation of paying child support after the death of the obligor parent, only continues if the parties agree to this provision as part of a marital settlement agreement or stipulated judgment. Otherwise, future support terminates with the obligor's death -- though any unpaid arrears can be ordered paid from the decedent's estate.

So, when you ask if it's SOP, it's certainly SOP for the obligee party. Whether or not the obligor views it as important probably depends on whether or not the obligee has a new surviving spouse.

The court cannot independently order ongoing support from a decedent's estate.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thanks for you reply.


 


Can you tell me if in your understanding the Texas Family Code requires the person who pays child support to be obligated to either provide insurance for the children or reimburse the other parent for the cost of same?

Expert:  socrateaser replied 1 year ago.

A trial court has the authority to order a parent to maintain a life insurance policy for the child's benefit for so long as the child support obligation exists.  Niskar v. Niskar, 136 S.W.3d 749, 759 (Tex.App.-Dallas 2004, no pet.);  Grayson v. Grayson, 103 S.W.3d 559, 563 (Tex.App.-San Antonio 2003, no pet.).

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I apologize for not being as specific as I should have I was referring to health insurance but did not state that.

Expert:  socrateaser replied 1 year ago.
Oh.

Texas (and federal) law requires that parents must provide health care coverage, if available at reasonable or no cost by their employer. If no coverage is available, the court must order reasonable additional support from the obligor parent. TX Fam. Code § 154.182.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you it does help.

Customer: replied 1 year ago.

They are working on the child support calculations. They are using my pay stub and YTD figure to calculate child support. Is this standard practice? I only ask because my first paycheck for the year was for the last 2 weeks in 2012.

Expert:  socrateaser replied 1 year ago.
A rolling year of pay statements is pretty typical for most support calculations. The goal is to determine if you have any bonuses or commissions that could increase your support obligation.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
socrateaser and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your help in this matter. Looking for clarification about the judge's temporary orders vs. the ones written by the lawyer. I rec'd from the court a copy of the judge's orders.


- Regular Standard Possession was ordered for during summer school (i


pick up Fri 6pm and drop Sun 6pm).


- For after summer school is over (which it is done now), the judge


ordered "Standard Possession with a Thursday exception" (i pick up


would pick up thurs 4pm and return monday a.m.; i.e. Sunday night is


now added back into my possession).


- no one asked for any change in possession at all in court, but he


ordered it... i think to show ex-wife to not be so petty going to court


about 5 days of summer school driving. and he said he was not


penalizing me, but since i now have to pay over $600 a month child


support that i don't have and never had to pay before due to 50/50


possession, it does feel like a penalty.


- What exactly does "election" mean regarding "thursday election"... i.e.


can I 'elect' to not take the thursdays w/the kids? because the lawyer's


temp orders do not use the word 'election' at all... so i am not sure.


- if i can completely opt out of thurs w/the kids, can she get me in any


trouble for not taking any thursdays?


- if that is within my right according to this 'exception' the judge


mentioned, would i have to give her written notice for every thurs or just


opt out of thurs altogether?


- if we can safely 'elect' to not take the kids on any thurs, can we further


'elect' to just keep it as regular Standard Possession (fri 6pm to sun


6pm) instead of fri 4pm (if we don't do the thurs) to mon a.m. - or only if


she agrees to that?


- the goal is to get back to the 50/50 possession at some point and not


have to pay child support any longer, but if she only has to now keep the


kids one more night per week than she used to when we did have


50/50, she can do that forever and still get the $600 a month on top of


it! what motivation would she ever have to go back to the 50/50 if she's


not overburdened by having to keep them 12 out of every 14 days like


she was the first 3 weeks after court? she was pretty surprised by the


judge's ruling too so i'm hoping she'll soon approach me for 50/50


again. but she'll never do that if we have close to the previous 50/50 but


she still gets the full amount of support.


- i want her to have the kids wed/thurs/sun (and me only have them every


 


1st/3rd/5th fri-sun)... but don't know if this is within the orders and how to


approach any of this if the lawyer begins to say A) i have to do the thurs


and/or B) cannot opt for regular standard possession.


thank you


Expert:  socrateaser replied 1 year ago.
Can you please scan the court's minute orders and the proposed final orders from opposing counsel and upload them to www.mediafire.com (redact personally identifiable information). Then, give me a link to the files, in your next Reply. I can't follow the "play by play," and I don't want to comment without knowing exactly what was ordered.

Or, you can type in the exact text of both orders -- whatever's easiest for you.

Thanks in advance.
Customer: replied 1 year ago.

Thank you. I hope she and i can eventually work out some 'final orders' between ourselves... but in the meantime:


 


Judge's orders from the court reporter:


"While the child is in summer school, you will have first, third, and fifth weekend standard visitation.


Once summer school is completed, you will have first, third, and fifth standard visitation with a Thursday election. So that will be Thursday after school you are responsible for pickup. Take the children to school on Friday. Return the children to school on Monday."


 


Orders written by the atty:


"Temporary possession order until july 27 (once (until) shad has completed summer school) (Until july 27, except as otherwise explicitly provided in these additional Temporary Orders, IT IS ORDERED christopher spoonts shall have the right to possession of the children as follows:


Weekends. On weekends, beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. the following Sunday.


Temporary possession order beginning July 27 (once shad has completed summer school) until further order of this court:


Weekends: On weekends, beginning at the time the children's school is dismissed on the first, third, and fifth Friday of each month (or 4:00pm if school is not in session) and ending at the time the children's school regularly resumes the following Monday (or 8:00 a.m. if school is not in session).


Weekend possession extended by a holiday: Except as otherwise explicitly provided, if a weekend period of possession begins on a Friday that is a school holiday during the regular school term or a federal, state, or local holiday during the summer months when school is not in session, or if the period ends on or is immediately followed by a Monday that is such a holiday, that weekend period of possession shall begin at the time the children's school is dismissed on the Thursday immediately preceding the Friday holiday or school holiday or shall end at the time the children's school regularly resumes following that Monday holiday or school holiday, as applicable.


Thursdays: On Thursday of each week, beginning at the time the children's school is dismissed (or 4:00 pm if school is not in session) and ending at the time the children's school regularly resumes on Friday (or 8:00 am if school is not in session)."


(when i don't have them for the weekend, they would just be here the one thursday night... which seems like a disruption for them to me.)


Thank you.

Expert:  socrateaser replied 1 year ago.
You could change:

Thursdays: On Thursday of each week, beginning at the time the children's school is dismissed (or 4:00 pm if school is not in session) and ending at the time the children's school regularly resumes on Friday (or 8:00 am if school is not in session).


To:

Thursdays: At Christopher Spoons' election, and without providing advance notice, on Thursday of each week, beginning at the time the children's school is dismissed (or 4:00 pm if school is not in session) and ending at the time the children's school regularly resumes on Friday (or 8:00 am if school is not in session).


Comments: The judge created the election without any restriction or notice requirements. Opposing counsel is trying to avoid the potential notice dispute, by eliminating the election -- probably because counsel believes that you want to maximize your parenting time, so you would never exercise the election to avoid a Thursday visit.

It's not what the judge ordered, but standing in opposing counsel's shoes, I can see the rationale -- I don't think this is designed to undermine your interests. But, it's up to you -- you can ask opposing counsel to modify the language to exactly follow the court's minute orders, or you can let it go.

Concerning the return of the child on Fridays, when school is not in session, I agree that it's messy. But, you would have to go back to court to get it changed, and you could walk out with no Thursday visitation. So, you may want to just "let sleeping dogs lie."

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33847
Experience: Retired (mostly)
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Customer: replied 1 year ago.

It does help.


 


If I was not able to take them for anytime of my possession I would just have to give written notice before my time of possession?


 


For instance if I was not able to take a Thursday I would just give written notice prior to my time of pickup for that Thursday?


 


If I needed to take them back before Monday morning would I just provide written notice before my possession time started?


 


Thanks so much.

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