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COVID Call: Back to School Edition

Episode19 - COVID Call: Back to School Edition

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Bryan Abercrombie and Samuel Sanchez. Bryan has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast..

We're back, ladies and gentlemen, after a little bit of a hiatus, right?

Yup, yup, a little bit little bit of a hiatus.

Okay, so now here we are back on the top Texas Lawyers podcast. So I heard today that Lori Loughlin is going to the big house for two months - Aunt Becky, going to the big house.

You know, like, she's going to be really popular there. I have a feeling.  Yes, she's a looker.

So what are we calling this thing? Our COVID Edition?

We'll call it, I think we'll call it our COVID call.

All right!

So, a little bit about celebrity divorce is in the news.

Oh, yes, our celebrity corner. Well, obviously the biggest one that's out as of late since our last episode is Dr. Dre.

One of my favorites, one of the bad boys from California. He's not feeling the California love.

The beats going, though.

Yeah, he got some huge dollars out there. He filed for divorce. He apparently had a rock solid prenup, which according to her or according to the news and who can believe the news. But she's filed in her pleadings that he tore it up ceremonially in front of her, saying that it was no longer valid. So she's going to try to set it aside. You know, legal sources say, obviously, that it's pretty rock solid. So whether or not that's going to be sufficient to get her there, we'll see. But that should definitely be a lesson for everyone, you know, on a couple of different points. First of all, prenups are important. You may start out as a ghetto boy or a gangster or a millionaire. Either way, you want to make sure that you're protecting assets for later on down the road. Not that you're planning for a marriage not to make it, but they don't always end up the way you think they're going to. And that can just help everybody at the conclusion of a relationship.

You know, she's got nothing to lose. She just fires as far as a shot across the bow, see if she can get, you know, get the thing set aside, right.

Yeah. You know, a lot of times your strategy in that, you know, especially when you're talking about a billion dollars over a billion dollar estate, because if she could set it aside, then, wow, huge, huge windfall. If she can't, the legal expenses, sometimes he may be willing to pay her what he'd spend in the legal arena to go away. So, you know, there's definitely strategy in it.

Okay, so let's talk about another thing that might require some strategy. And this is kind of a hot topic now, right now, especially given that we've got a lot of home school, we've got a lot of virtual online learning, and we've got some some schools going back in session. So we've got, you know, kind of this COVID-19 crisis we're dealing with. And then we've got a, you know, education decisions on the other hand. So let's let's talk a little bit about that.

Yeah. You know, it's a huge issue for parents across the country, really globally is, you know, in the middle of a pandemic, the kids to school. Well, some school districts are saying in-person, some are saying virtual, some are saying a combination thereof. But the concern that a lot of parents have is let's say you're the non-custodial parent or the parent who is not the primary parent. So your child is living predominantly with another parent. And this parent either works or lacks the educational background to be, you know, guiding your student for online education purposes. Because as much as school districts, I think, are going to try to do their best to try to get a curriculum set up that kids can utilize and fundamentally at least gather some education through this process. Is it going to be the same as an in-person education setting with certified or, you know, a teacher who's licensed and has that educational background? You know, that's a really challenging and tall order, in my opinion. And so parents are really having concerns about somebody who's not qualified, potentially affecting their children's educational status long term. And it's starting a lot of litigation.

Yes. And then obviously, this is a situation where, you know, Texas has in the joint managing conservatorship and every divorce you're talking about one of the parents or the other parents or it's a joint decision on education decisions. And this is really I mean, normally the education, especially with kids going to public school, you know, it's normally the decision is unless you have a child with special needs or something like that, you've got a decision just whether that child gets passed on to the next grade or very simple decisions like electives or where their child gets passed on to a next grade. Not complicated decision. Now, you've got a decision to make whether or not that child stays home with one of the parents or whether a child goes back into a learning environment in the classroom. So it's creating a lot of litigation.

Yeah, absolutely. Bryan, in the big piece of it is. So let's to start with Texas, right. Texas, just like you said, the rights that exist between parents, the right for educational decision and the right to declare who's the primary parent based on the possession schedule, those will affect your school district and your choice of attending the school. We originally, you know, talk about these orders from a court. A court looks at it and says, like most kids in Texas go to public school because we have a good public school system for the most part. Well, in that situation, that's not home schooling. Home schooling typically falls outside of a primary decision into an educational decision. And what that is created is most parents, when we think about home school, you know, it's not like it's got the greatest reputation in the world for turning out these great scholars. Right. And so, like, I'm not I'm not saying that there aren't some great curriculums that are out there and there haven't been some individuals who've done. Successfully, but overall, it hasn't really had the best reputation in the courtroom, right.

And so now when you say, Okay, they're attending public school at home, that's that's the weirdest combination, this amalgam of. So meaning that a parent is actually really fundamentally guiding that kid's education as opposed to an educator. But it's this weird hybrid. And so I understand where parents have that concern, because if you look at it, you'd say, hey, my wife, who I'm about to get divorced from, has graduated from high school, never went to college, has no degree, no background, no patience for being a teacher. But yet she's going to have to assume that role because I still have a career in this COVID period where I have to go to work, whether it be in person or virtual. I don't have the ability to do that, but I sure as hell don't trust her to do it. Then what do you do?

Right. And then what do you do on the decision where, like my child's school district, you have the choice of keeping your kid home and doing virtual learning for the first nine weeks or sending your kid out of school. And, you know, there's a number one safety concern. Do you feel confident that the kids can go back to school safely without running the risk of contracting this virus? Or do you keep them at home with your with your situation? Maybe you have a parent. It's not so great at the educational aspects and you've got to go to work and, you know, so that's the real conundrum the parents, the parents are having.

Yeah, it's definitely creating a lot of concern and litigation where parents are going in and wanting to at least try to modify in order. And especially when you talk about like, you know, we've talked about it in the past, in previous podcasts about these rights and how they're distributed in the state of Texas. A little different in the state of Florida. But in Texas, there's three ways these rights are typically done. One, which is the default in the Texas family code, which is independent rights between parents. Where you and I've had that conversation, independent rights for our listeners basically means everybody can make a decision when they want to. There's no obligation to have a meeting of the minds or any joint decision before you decide. So let's say you have let's complicated even more. You have a 50/50 possession schedule, meaning that there is no primary. And what you said is that the child is going to remain in a geographic restriction area, but not necessarily attend certain schools within. One parent says, I don't trust you. My kid's going to go to this really high falutin virtual school. And the other parent says, no way, I got to work. So my kid is going to actually go to in-person schooling, you know, so you're absolutely going to have to file something at that point to get in front of the court. And the problem is COVID has and as we discussed, really made courts somewhat inaccessible at times in relation to these types of issues.

So you've got to file a motion, then you've got to get in front of a judge, which, you know, depending on your county and depending on the stakes and the, you know, and everything else, you may or may not be able to get on. You may be able to get a Zoom hearing. Most people can get a hearing, but it's sometimes running a little slow. So, you know, what do you do in the meantime? I mean, there's you know, the courts consider it an emergency and sometimes they do. Sometimes they don't. So. You know, your guess is as good as mine about what you do in that situation. It's kind of uncharted territory.

Absolutely. And not only that, Bryan, but every court has a different perspective, as we've seen, just like everybody else has a different perspective. Some people want masks in every hearing, virtual. Other judges are like, get your butt in here. I want it in person and you're still going to wear a mask. Others are like, what am I going to wear a mask? Because I don't believe it. I mean, it's just all over the board.

And so you've really got to have a really in-depth conversation with your counsel in your particular area to figure out like what is the court's perspective? Have they litigated this issue before? Have they seen any of the tendencies in this court has done in relation to their rulings on these issues before you just launch off and say, like, hey, let's go nuclear and get into court and things get worse.

And I would tell you I would tell people to come into my office, just see if you can sit down with your ex or your significant other and come up with a solution for the short term. I mean, if you're just absolutely at odds, that's what that's what the court is there for. But I mean, try to take an adult approach with this thing and and see if you can get a consensus agreement. You know, from the outset, I mean, some people in our neighborhood are hiring tutors.

I've seen that. I've seen, you know, online tutors. I've seen, you know, somebody else monitoring the education for a couple of families. You know, I've seen all kinds of different approaches to all this. But, yeah, I mean, if you can if the line of communication is open at all, I would at least see if you can get something, some kind of consensus with the other parent. That said, sometimes that's not the case and then that's that's when you end up in court.

Yeah. And I get it because, you know, a lot of parents look at the science right now where, you know, like as an example, the American Academy of Pediatrics has said, you know, that, you know, while it's still considered a relatively low risk of children developing severe COVID-19 issues, there are several children that have died. And so who wants to take a chance with their children, whether they're going to get sick or whether, you know, even if it's a small case that the parents don't want to do that risk doesn't mean no risk. No risk. Exactly. And if you look at those numbers currently, I mean, those cases cumulatively since we've started back in the past month, have doubled. This is what they're reporting now. What does that mean? You know, everybody talks about the numbers and like, you know, are they legitimate? Are they being double reported? Who the hell knows? And so, you know, most parents are going to air on the side of caution. And I would agree with you, Bryan, that, you know, as a parent, I think you need to at least first attempt to have very, you know, valid and open and honest conversation with the other side to say, here are my concerns are legitimate or I don't feel that we share the same concerns. But is there a solution in the middle before you go spending a bunch of money to get into court? However, let's take the scenario, Bryan, where you can't agree you had the conversation. They're not agreeing. You're at odds.

What next? You file your emergency motion and you see if you can get an emergency hearing with the judge. I mean, that's the that's the fastest way to go about doing it, especially with school starting and a lot of districts you want that decision. And sometimes judges are sometimes there's mediation clauses in divorce decrees or potentially arbitration. You could get to and get it done quickly.

But ultimately, if you're if you're at an independent like you were talking about before, if you're at an independent decision making, then I mean, I guess that could home school on his time and mom can home school on her time or, you know, or whatever, and that just would make it absolutely insane. But a lot of these schools are not allowing that. They're saying you're all in for one or the other. So you're either all in for home school or you're all in for on campus school. So.

You have to get a decision, I mean, the tiebreakers are always good, I mean, a lot of times we put tiebreakers in a degree.

But, you know, I don't know that the school counselor is going to be comfortable making a decision on whether or not the child will attend school or does virtual learning at home.

So that's where that's where a judge might have to come in. And and you hope they can get it. They can get a decision fast, but, you know, you don't know.

No. And in that situation, so I've advised clients now they want to know, like, well, let's say it does become an issue because the first thing I tell them is like, how do you know it's a problem? Like, you know, sometimes it's going to take you going in there and at least attempting it. You may say, hey, this person only did two years of associate college. And I don't think you're going to be able to teach my child, you know, who's in kindergarten. Well, you know, coloring and color inside the line when you just had two years of associates college, probably if we were talking about, hey, there are freshmen there in AP classes and they're doing advanced, you know, molecular science in their type of school, you know, their STEM school, then probably not, you know. I mean, so the scenario is going to be different based on the facts. And I always encourage people just remember two things like self-help is never going to be a remedy. Right? So you going out and dragging your child and saying we're checking you out and then the parent drags them back in and checks them back in and you have this seesaw battle is never going to be good for your kids.

So if you can't reach some type of resolution, I agree with you. You have to get some of this. It's not typically going to be from a court or an arbitrator, depending on the clauses in your divorce decree or your your subscription or accepts your order. I mean, but on top of that, I would really encourage parents to really think through the options that are available and start gathering information because that court probably doesn't know any more than the parents know, meaning that you're going to have to take time and effort to educate the court about the situation. So you're going to have to know the educational assessment of the area schools or whatever program that they're trying to enroll, or you're going to have to know the background and have some history about her failures or his failures in relation to a parent who's trying to lead some educational process for a child, because going into court and saying you don't like it because you don't like it, probably not going to be the most successful way to attack.

And keep in mind that these judges often times are going to have to see them again if you go in for a modification. So if you're really going to take an unreasonable position just because you don't like the guy or you don't like the lady or whatever, that's probably going to come back and have a have an impact the next time you go down in front of that judge.

So you really got to make sure this is the hill you want to die on. Yeah.

And it's, you know, it's tepid water. It's water that everybody's kind of sticking their toes in or getting their feet in or trying to jump in with both feet. But nobody's really swam the channel. And so it's still relatively new and judges are still trying to figure out how best to approach it. So the best thing I would recommend is help them. I think we're finding out.

I think we're finding a lot more about this virus every day.

So, you know, your guess is as good as mine about which scientists are witch doctors, you believe. But I know we're finding out more information, and I'm sure this will bear itself out hopefully in the next few months. But in the meantime, what do you do? And that's the that's the real situation, right?

Yeah, absolutely. Absolutely. You know, the other piece of that and I would tell you is, OK, you know, you're going to get into a fist fight over school. Now you're in it, you're litigating, you've gathered your stuff. Let's say the court comes out and says, you know what? Public school, virtual school, online school, whatever it is, it's fine. The way whoever is already set up in the order is going to proceed. You can always tell people is, look, modifications are not a one and done know this is the type of thing that can come back repetitively as an issue as people struggle with it. Now, I hate to tell you to go out and let your child start to get behind in school because you have to let somebody pass or fail. But that's really the type of environment that parents are going to find themselves in. Should they not get the kind of ruling that they want up front, you may have to sit back. What matters kind of progress, take and document your concerns and then come back and take another bite at the apple based on what's transpiring, because obviously this is something that courts are going to take very seriously, the educational, welfare, emotional well-being of a child, because it's not just can they learn? Right. It's the environment, their social skills, you know, what's happening in their lives as a whole that a court is going to look at is what the situation that presents itself in their best interest. That's whether you're in Florida, whether in Texas. That's the foundational inquiry. And so don't lose hope if you look at it and you're like, gosh, I don't really have anything that's meat and potatoes. Those, as we say, to get into court and throw at people and say, look at this is what they've done wrong, then it may take a little bit of due diligence on your part and some investigation to see how it's going. And if it does take a turn for a turn south and you're ready to respond, right?

Yeah, I think that's pretty much that pretty much covers I think that covers the kind of the situation. We're in a lot of unknowns. And, you know, we've got to move forward as best we can, right? Yeah.

You know, pandemic, Bryan, we've talked about this in a couple of different episodes. But doggone it, like, it's novel. It's it's not a novel for scientists. It's not for the legal profession. There are some things, though. I think that along with what we're talking about with parents, that every person should really still come here and contemplate and prepare themselves for whatever may come. Don't you think?

Yeah. And I've also had a number of clients calling me upset because a parent A had a child over at the house and then they decided to have five people over for a cookout. And you know, who was there and, you know, who did they expose the child to and and this and that. And I've gotten a lot of those kinds of calls coming in. And you just got to bring a level of sanity to this thing. A pandemic doesn't necessarily give you the right to pry into the other person's life and, you know, figure out everything they possibly could possibly be doing with the child when the child is in there, you know, in their possession.

So you've got to bring a level of reasonableness to this thing when many courts are looking at kind of COVID kind of skeptically at the moment and saying, like at the Supreme Court in Texas has said, you know, that's not enough. It's not enough that you're scared of what could happen with COVID for you to come in and say, I'm going to refuse to do X, Y or Z or allow parents to do X, Y and Z with the child. So to your point, you know, you really got to kind of, you know, put a lid on the pot as much as you can and make sure that there's actually legitimate concerns that are going to get you somewhere if you're deciding to try and decide to go into court, you know, at some point, you just got to have to you've got to have to, OK, the other parent should should be looking out for the best interests of the child as well.

I mean, it's kind of like the old leaving the child in the room with a pit bull. You know, you better hope that that other parent knows that pit bull and knows that child is going to be safe in that room at some point. Unfortunately, you have to rely on the other parent being responsible and reasonable. And if and if that's not the case, then I urge you to get legal action, legal help right away, but to make sure it's worth make sure it's worth your while to do it.

Yeah, without a doubt. And I mean, I think there's a couple of things that I guess, you know, passing on that same note that I've been trying to tell families and parents, you know, there's a lot to consider as far as concerns that exist in relation to living, living through living during a pandemic and taking care of your family, your children. And obviously, we're talking about an educational aspect of what's in front of parents. But I would also tell you, you know, what we're seeing a lot of with this pandemic is if people are getting sick instantly, you know, they're like, what happens if the worst were to happen? Right, to my spouse, to my children? Like, do I have something that's going to provide for them should the worst happen? You know, it's always terrible when we say we always plan for the worst and hope for the best. Right. Right. And so in that situation, I mean, I've really just been talking to clients about make sure as a final note, it's not really related to school, but it's just related to families that you have an estate plan in place, like, doggone it, I promise you, your siblings, your children, your spouse are going to you know, they're going to thank you a million times over that. You contacted a lawyer, talked about what should happen. And worst case scenario, I'm prepared. An estate plan, whether it be a trust or will package, whatever it is it's going to help should the worst happen, whether it's going to be I'm incapacitated and I need a medical power of attorney for you to be able to make decisions for me or I don't want my spouse to make them because we're about to go through a divorce. So maybe I want my mom to make him somebody who actually wants to wish me well instead of, you know, terrible things. It's just a lot of things to think through. And I think really your state plan is one of them that I really encourage families to consider and consider.

You're talking about the gestation of this. You know, you can be on a ventilator in ten days and then twenty.

You know, it's it's a.

All this causes you to just causes you to take another look at life and you know what's more important? And like we talked about, I know on numerous podcasts before, your estate plan is what's left for the people that come behind you. So make sure it's the way that you wanted to make sure the people that, you know, if you're in a in a position where you don't aren't able to make decisions for yourself and make sure that you've got somebody there to help you make decisions or to make decisions for you that you can rely on and you can trust or, you know, if you're dealing with children and you know somebody there to take care of your children, if there's if there's an issue. Because, you know, unfortunately, the scariest part about this is probably not knowing. We know that we don't know everything. And, you know, people are trying to live their lives as best they can. But, you know, we're we're, you know, operating on just whatever information we seem to get. And we obviously we're learning more and more science is learning more and more about this every day. But, you know, it doesn't it doesn't mean they know everything and it doesn't mean that, you know, you shouldn't be prepared in case the worst the worst case scenario happens. Yeah, I couldn't agree with you more, Bryan, in that regard.

I do feel like if there's one thing that you want and you want to insure, I think every parent, husband, wife, mother, father looks at it and says, like, if I if I if I get ill, if something happens to me that's extremely detrimental or I die. I sure don't want to pass along headaches and make other people's lives more difficult or worse in that situation. It's bad enough that I'm not there to take care of them. How can I preserve, you know, their their well-being, their quality of life when I'm gone? And it's a really simple process typically. Right. Go in, meet with a lawyer and have them craft something that is going to allay those concerns and really provide security for your family, for the future.

And it's really, you know, it really transcends kind of the pandemic, too. I mean, you need to have that stuff, you know, anyway. But I mean, this this kind of pandemic, as much as it's a it's a tragedy. It's and also an opportunity for people to kind of re-evaluate things and look at their lives and look at these are the kinds of things that need to be concerned about. And these are the kinds of things I need to plan to prepare for. So, you know, you know, coronaviruses pandemic aside, you know, you need to have the stuff in place in case you get you get hit by a bus or something. You know, these are the kinds of things that really help and they're not difficult to do. And most for most people, they have the, you know, the standard stuff that people do when they have houses, cars, retirement accounts. It's not that difficult to get an estate plan together very quickly that covers you in the event that, you know, you can't you can't. You're in a position where you can't make decisions or, you know, unexpectedly pass away.

Yep, absolutely. Whether it's just insurance for your family life, for the future.

Absolutely. We have kind of exciting announcements that you want to take it or should I? Oh, no.

I'll go ahead and jump in a little bit. You can clean it up because, you know, you're the boss. So we obviously together, we have worked in the legal field for three decades now and tremendous amount of experience and expertise between the two of us. We put together an ebook that I think it's going to be fantastic for listeners and potential clients and existing clients to really take in relation to the divorce process. Now, we anticipate obviously expanding this out in the different areas of law that we practice in. So you'll probably see more of those coming. But the first one is going to be dealing with divorce. You know what what to do, how to prepare, kind of things to look forward to as you go through. I think it's going to be a tremendous asset and resource for individuals who are listening to our podcast and saying, I wish I just had a little more concrete information to kind of go on.

I think this guy is going to be a really helpful tool for individuals that are going to go, yeah, it's going to be kind of like a, you know, kind of like a survival guide, I guess, for lack of a better word. You know, you're going you're contemplating a divorce process.

What you expect, what you know, what what kinds of things am I going to be looking at? What kinds of things that I'm going to be faced with? Those are the kinds of things that it's going to. Go and take a look at so.

Yeah, I think it be a great resource, I think individuals are really going to find it tremendously helpful in anticipation of or even if you're in the process, to kind of figure out like where am I, what I need to do, you know, where should I be going?

So we spent some time with it. And obviously nothing beats the the advice of a good attorney. But I mean, obviously, any way that we can kind of try to help out, you know, you getting started in that process where we're willing to do where we're here to answer questions. We're here to help you move through that process. And that's that's that's what we do. That's we would devoted the majority of our practice to is helping families.

So how do they get a hold of a. Well, you can hit us up at our website. That's ASTM legal dot com, and you can reach me in the Dallas Fort Worth area. Or if it's a Florida case, my direct line is eight one seven nine one four five four seven zero.

We also have an 800 line if you want to reach us. I mean, my my direct line is in Houston and it's two eight one three seven four four seven four one. And then our 800 line, which is probably the best place to get us, you can call from anywhere, is one eight eight eight nine eight one seven five oh nine. But you can find all of that information on our website and we are happy to help you. We are happy to take a look at your case. We are happy to assist. You were family lawyers. And we you know, we deal with family matters. So that's all I have for today.

I'm happy to be back with you, Sam. I think we've we've had a little bit of a hiatus.

We were getting kids ready for school, getting them all, you know, all off and done and all that kind of stuff, and now wrapping up some summer. But we're going to be back on this thing hot and heavy. Come come fall, huh?

Agreed. Yeah. Looking forward to some of the topics that are upcoming. So we're definitely going to do some more with firearms and businesses. And so that's one of the upcoming ones. And we're also looking at some very specific merger clauses in relation to some of the business transactional work that we've done in the past. So a lot of things up and coming that I think are going to be tremendous help, tremendously helpful and insightful to our listeners. And I look forward to it. Brother. Glad to be back.

Glad to be back. And and like I said, you know, we're trying to cover areas that we think are, you know, kind of relevant to what's going on. And I know this world has completely changed in the last six months. We've got two totally different things that have become priorities now that that weren't necessarily priority six months ago. So we're trying to take that all into consideration and we're trying to plan our topics accordingly. But I urge you to subscribe if you like us. And let's let's look forward to joining you in the weeks to come.

Sounds great. All right. Take care. Have a great weekend. And you my friend.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at astxlegal.com. Once again, that's astxlegal.com. Thank you very much.

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