What's the Definition of "School Age" in a Custody Order
My question involves a child custody case from the State of: Texas
I was granted a divorce in Sept 2013 well before my youngest child was diagnosed as being on the Autism spectrum. I have another child by the same man who we already knew was autistic. After many months of working through a program based on my income alone to get pretty much free assistance we were told that his turning 3 ends their program. They informed of us of another assistance program that is provided through my school district (I am the one living in the area and pay taxes for this school district) that would be given Monday through Friday. My ex-husband and I both agreed that this would be great since we couldn't afford regular speech and social therapists on our own.
My issue is this: according to our divorce decree my ex-husband is to have custody of our youngest during the week days while I'm at work until "school age" and then after that I would be responsible for him on Thursdays and Fridays. He will be turning 3 on January 20th and shortly after that he would be enrolled into this program. The fact that we have to enroll him into the school has lead my ex-husband to believe that this means he's a student and our son is no longer his responsibility. In the state of Texas it has been shown that any child over the age of 5 is required to be enrolled in some form of schooling. After my showing concern of his trying to find a loop hole, my ex-husband contacted his lawyer (I can't afford one). His lawyer stated our divorce "may not address this precise scenario". I interpret that as a "no" and he's not exempt from his responsibilities but I am not a lawyer nor do I try to fudge anything with my divorce.
Let this be known that this isn't the first time my ex-husband has tried to weasel out of his possession schedule with our children. He has also stated many a times that he is not concerned about my ability to pay my bills or keep my job. I have limited income as I am living in the home we purchased together and not only have joint custody of our two children but I have another teenaged son from a previous marriage. I have been able to sign up for assistance with daycare for my middle child through a Texas program but the wording in our divorce is what they go by. I know that if I try to get funding for my youngest I would be immediately denied as it states my ex-husband has custody until "school age".
Please let me know what your opinion of this matter is. I am desperate and I don't want to lose out on such a wonderful program for my youngest. I just can't see jeopardizing my ability to pay for my house, food for my children and bills when my ex-husband and his wife are able to afford day care expenses which they have been doing all along.
Re: What's the Definition of "School Age" in a Custody Order
"School age" could be defined in the order itself, or there could be something in the context of the order that sheds light on what the term means. Absent any such language or context it would normally suggest a child whose age places him or her under a state's compulsory attendance laws. See Texas Education Code, Sec. 25.085. That appears to be the general conception that Texas courts use when they address "school age" children in custody opinions.
How a court might interpret the language could also turn on the facts. If "this program" is an hour or two a week, then a court is highly unlikely to view your son's participation as indicating that he is "school age". If he's enrolled in the program for a full school day, every day of the standard school year, the court might take a different view.
Re: What's the Definition of "School Age" in a Custody Order
We should probably first deal with the underlying issue that you cannot force your ex-husband to exercise his custodial rights under the possession schedule of your divorce decree. Custodial rights are rights, not obligations. However, his duty to financially support his child is an obligation and should he decide to stick you with more child care requirements then it may be time to look at contacting the OAG or a private attorney to pursue an increase in child support. (The Office of the Attorney General does that work for free so that may be a better option for you.) Perhaps there is even an argument to go above the support guidelines as he is not exercising his visitation periods and not sharing in the cost of child care during those periods.
As far as the "school age" language in the decree goes, let's call that what it is: some terrible drafting. The decree should have been drafted to specify enrollment in the standard public education program or an equivalent private school program. But his attorney didn't do that so you're stuck sorting out the mess. I agree with the response above that courts are most likely to interpret "school age" as consistent with the age upon which a child would be enrolled in kindergarten or a comparable program.
Re: What's the Definition of "School Age" in a Custody Order
It would be great if I actually got child support from him. He and his lawyer got me to agree to no one paying child support as I was without a lawyer and desperate to get him out of my house at the time. My ex-husband has taken it upon himself to not only change the possession schedule time to suit his life better without legally contacting a lawyer and making it official. Rather, I get a scathing email stating that I should just do what he says or we'll have issues.
This whole "school aged" argument is something that he started and didn't confer with a lawyer. Only until I stood up to him did he actually discuss it with the lawyer he hired for the divorce. His lawyer stated that the wording of our divorce doesn't "necessarily" cover our scenario and he has gone on to argue that that answer still means he's right in his assumptions. I have made contact with the head of this program we are trying to enroll my son and she has agreed with me in that this isn't any way, shape or form a program based in education. If we didn't enroll him here we could easily be paying hundreds of dollars via other facilities.
Re: What's the Definition of "School Age" in a Custody Order
Just because support was not ordered at the time does not mean you cannot modify the order to include it, particularly once you become the parent with primary custody.
He's going to keep yanking you around as long as you let him. What he doesn't realize is that if you obtain primary custody over your younger son then you can pursue child support, probably support over the the guidelines due to child care needs and specific medical attention for his developmental disability, lose the right to claim your son on his taxes while you would likely be able to obtain access to a number of assistance programs and tax credits. It's almost assuredly financially disadvantageous for him to pitch this fight with you. The stupidity in his position is that if you go pursue a modification to include this support it's too late for him to argue that you shouldn't have custody (and therefore not need child support) because he's already made the argument that you should have custody. You would want to modify the custody language to specify that you are now the custodial parent and pursue all the support for which you are entitled.
Re: What's the Definition of "School Age" in a Custody Order
Do you know any pro bono lawyers that could help me? I've tried to get assistance with the free lawyer service here in the Austin area but no one seems to care about family law --they want people who are seeking divorces from abusive spouses or people who've broken the law. I can not afford to put down a real retainer at this point. If you or anyone on here could direct me to a law firm that is willing to really help me out that would be awesome. However, I know this is just a forum to give free advice not service.
I know that this kind of harassment and nonsense that I will forever see if I don't do something now. We haven't been divorced for more than a year and a half now and he's already tried to get me charged with "assault" (to which I had the charges dropped due to his lack of evidence and having prior issues with him that the police were aware of). He has no regard for my financial issues -- I had to file for bankruptcy due to him maxing out every credit card under my name, leaving me loans that we applied for together but under my name and using my car and racking up over $1200 in Texas Toll fees. I am working full time and even over time to make my bills and pay for extra expenditures (Christmas gifts, birthday gifts, etc).
I hate the idea of begging but not being knowledgeable of the resources out there, I am pretty much just keeping my head above water --barely.
Re: What's the Definition of "School Age" in a Custody Order
If you want to try to find a lawyer who will represent you at no charge, I suggest contacting law offices and asking if they will help. Given that lawyers are swamped with requests for free legal services, it's not going to be easy. You can always ask legal aid if they can refer you to a lawyer who might take your case for free, at a discounted rate, or on payments.
Re: What's the Definition of "School Age" in a Custody Order
I also live in TX. I applied online for child support, it's not a difficult form. You can also call or visit your local office and they will help you with the paperwork. I would suggest going through the Office of Attorney General first. If they are not helpful, you can always look for a lawyer. https://childsupport.oag.state.tx.us/wps/portal/csi
Re: What's the Definition of "School Age" in a Custody Order
I think we're putting the cart before the horse here discussing how mom should file for support when she's not the custodial parent - neither before nor after the child "becomes school age," whenever that is determined to be. She needs to sort that issue out first. No one has asked whether she is paying support to dad.
Honestly, it doesn't seem like either of these parents want the child that much. I'm not convinced a judge would or would not change custody given mom's attitude and dad's as mom has presented it. I wonder what dad's side of the story is here.
Re: What's the Definition of "School Age" in a Custody Order
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Quoting
FatherWhoWon
I think we're putting the cart before the horse here discussing how mom should file for support when she's not the custodial parent. She needs to sort that issue out first. No one has asked whether she is paying support to dad.
Honestly, it doesn't seem like either of these parents want the child that much. I'm not convinced a judge would or would not change custody given mom's attitude and dad's as mom has presented it. I wonder what dad's side of the story is here.
I am not entirely sure that I agree with you on the "custodial parent" part. At least in this scenario. Dad's own attorney doesn't appear to be willing to take a firm stance on anything which would lead me to believe that their order is open for interpretation.
I think that mom really needs to consult with an attorney to review their orders and give her an opinion.