Join Christina Jimenez, Josh Floyd, James Pailin, and Julie Prentice from The Jimenez Law Firm, P.C. to answer your Family Law Questions every Friday at Noon on Facebook Live!
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The Jimenez Law Firm, P.C. specializes in Family Law. Our offices are located in Flower Mound, Lewisville, and Odessa, Texas and we provide representation to residents throughout North Texas and West Texas who are struggling through a wide range of legal dilemmas. Many legal situations can be resolved through negotiation and mediation. When this communication breaks down, however, it is important to have an attorney on your side who has courtroom experience.
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Christina Jimenez: [00:00:07] Ok. Hello everyone and happy Friday. Welcome to the consultation. My name is Christina Jimenez.
Josh Floyd: [00:00:16] And I am Josh Floyd.
Julie Prentice: [00:00:18] And I am Julie Prentice.
Christina Jimenez: [00:00:20] Very good. And today we are here to kind of talk to you guys about some more legal issues. Basically, what we do every Friday at noon is we go through some questions that have been asked of us or attorneys in general with regard to specific facts. And we do our best to give a little bit of insight as to what we think the courts are going to do. And as you’ll probably see as we’re going through and having these conversations, a lot of times it is just as arguing over what we think the courts are going to do because its family law and we never know what the courts are going to do. So with that being said, I always say this at the beginning, say it in the middle and the end, and I basically explained that this is not to be considered legal advice. It is very, very important that if you have the, I guess, opportunity or what’s the word I’m looking for.
[00:01:21] If you have a case and you’re going through some of these issues and you need legal advice, you need to reach out to an attorney, tell them your specific situation. Because as you’ll be able to tell when we’re talking through these things, one little factor can change our entire opinion about the case. So don’t take this as legal advice. We hope that you enjoy it and it gives you a little bit of insight as to what we think. But all attorneys are different and all courts are different in all jurisdictions, so remember that. With that being said, we were supposed to discuss a topic last week, but we had a special guest last week. And so this week we are going to talk through the issue of whether or not we believe that the COVID vaccine is, in fact an invasive procedure and how the rights and everything are allocated.
Josh Floyd: [00:02:16] I think we need to remind everybody. So my position was, is that.
Christina Jimenez: [00:02:22] We don’t need to go through all of that.
Josh Floyd: [00:02:23] I think it’s necessary.
Christina Jimenez: [00:02:24] No. We’re just like what it is.
Josh Floyd: [00:02:28] So for those of you that didn’t watch, we got kind of a little debate about it. And my position was vaccines are not invasive procedures. Miss Jimenez took the opposite side, which is generally a bad idea against me. But she did. She took the opposite side. And so we’re going to see today whether that was a bad idea or not.
Christina Jimenez: [00:02:49] Nobody likes when other people do the I told you so.
Josh Floyd: [00:02:54] I remember around our first or second episode when I was incorrect about an issue and somebody who will remain unnamed, at that point thought everybody liked it.
Christina Jimenez: [00:03:09] No. Nobody likes it at all. So I guess let me back up and just kind of talk through rights and duties, Ok. So when parents are separated, there are going to be different rights and duties that are going to be allocated to each parent. There’s joint managing conservatorship where both parents, I guess, have what I call information rights and decision rights, Ok. And we can give those to one or give them to both. There’s all different ways that we can kind of set those up. There’s still managing conservatorship where both parents have the rights to have information, but typically only one parent, the sole managing conservator, has the right to make decisions, Ok. And so what we were talking about is rights and duties, the main one or one of the big ones is the right to make decisions, medical decisions regarding invasive procedures.
[00:04:12] And the question was, is a vaccine, in fact, an invasive procedure? And if one parent has the exclusive right to make those invasive procedures, does it give that right to or that parent the right to make those decisions? If both have what we call independent rights, which basically means that either parent can make that decision when they have the child or the ability to make the decision. Does that mean that both parents can make those decisions? How is all of that going to play out?
Josh Floyd: [00:04:43] Let me further clarify, because whether they’re a joint or sole, a parent that has the right to possession, has the right to make medical decisions during their periods of possession that are not invasive medical procedures. So if in fact, it’s not an invasive medical procedure, any parent that has a right to possession would be able to make that decision, right.
Christina Jimenez: [00:05:06] Right. And so can a parent get the, and it was obviously the COVID vaccine we’re talking about. Can a parent get the COVID vaccine if the other parent doesn’t agree?
Josh Floyd: [00:05:26] The answer is we don’t know.
Christina Jimenez: [00:05:31] I thought, oh, you were right on that one issue. Yeah. Whether or not it’s an invasive procedure, not an invasive procedure. I will concede that it’s not an invasive procedure. But obviously it’s a medical procedure, right or it’s a medical decision or issue.
Josh Floyd: [00:05:52] So I don’t know that you can make that blanket statement. I would say that it’s not likely going to be, but did you find something that said it’s absolutely not.
Christina Jimenez: [00:06:02] Well, no. We didn’t find something that said it’s absolutely not. But I think that if we were to go to court and have to make an argument that it is, it probably would not be a very strong argument. And so I guess talk through that because Julie, you found some really good stuff and so did you Floyd, with regard to is it invasive? Why do we not think that it’s invasive? Talk through that.
Julie Prentice: [00:06:36] So when it’s talking about invasive, it’s talking specifically about surgical and things that would cause blood. And we found cases that even like braces or orthodontist type stuff could be. But at the same time it’s saying pretty clearly, I mean, not that it’s not, but that there’s not a definitive answer on it as far as the appellate courts go. But in the lower courts, they’re starting to find that it’s not an invasive procedure because it isn’t necessarily surgical.
Christina Jimenez: [00:07:09] Yes. So what the handbook refers to is a case where it’s Brennan vs Sydenham, where I guess they were arguing whether or not orthodontic braces is an invasive procedure or not and that court found that it’s not an invasive procedure. And they use the definition from the Texas Health and Safety Code, 85.202 subsection 3, which basically says that an invasive procedure means a surgical entry into tissues, cavities or organs. So when I’m looking at the definition of tissue is obviously any sort of that would be an entry into tissues if you’re getting a vaccine. I think the word that courts going to turn on is that word surgical, right. And so did you all find the legal definition for surgical? I didn’t. I kind of just used some other articles that I found. And basically surgery, where was it. What did I tell you all earlier? You all remember?
Josh Floyd: [00:08:17] We probably weren’t paying attention.
Christina Jimenez: [00:08:19] Probably not. Surgical procedure, it involves cutting into a person’s tissue, and it has something to do with. Say guys, I gave you a really good definition earlier. It was really good.
Josh Floyd: [00:08:33] While you’re looking for it. So it kind of brings up an interesting issue. Julie and I just thought about, we probably should’ve thought about this earlier if we were good attorneys. So DWI blood draws has been deemed invasive, right. Which is the same thing, just taking a needle into an arm. And they said that’s an invasive now maybe not invasive procedure for the purposes of conservatorship rights, but its invasive enough now to require a warrant.
Julie Prentice: [00:09:00] Correct.
Josh Floyd: [00:09:01] I wonder how that plays into any of this?
Julie Prentice: [00:09:04] I don’t know. I mean, the only difference I could see is taking some blood out versus putting something in.
Josh Floyd: [00:09:10] Maybe yeah. I think that might be the argument is that you’re taking.
Julie Prentice: [00:09:14] You’re taking bodily fluid out has been the criminal court side of why they’re saying that and why it requires a warrant because it’s taking like people aren’t entitled to your blood. Inside of you it’s a bodily fluid. And so taking it out is pretty invasive.
Josh Floyd: [00:09:30] So going around poking people, that’s not invasive. But if you’re taking the blood away, that’s invasive.
Julie Prentice: [00:09:37] Pretty much. It’s not necessarily the needle, it’s the taking out of the bodily fluid.
Christina Jimenez: [00:09:43] Yeah. I feel like I’m going to research that a little bit further because perhaps this whole thing will change and I’ll be able to say, I told you so. Maybe. Thank you for pointing that out.
Josh Floyd: [00:09:55] [cross-talk]. He agrees with Julie that it’s invasive because you have a privacy interest in your blood.
Christina Jimenez: [00:10:04] Nobody likes. And I told you so as I previously stated. So your little happy face is really not appreciated.
Josh Floyd: [00:10:12] I think it is appreciated.
Julie Prentice: [00:10:14] The backup was appreciated.
Christina Jimenez: [00:10:18] So the definition of surgery was it transforms living tissue in an irreversible way. And that was the definition that we found from the American College of Surgeons. So I think arguing that it is invasive is not going to be great, probably wouldn’t win, but it’s a medical decision, right. We all agree on that.
Josh Floyd: [00:10:43] Yes.
Julie Prentice: [00:10:43] Yes.
Christina Jimenez: [00:10:44] And so with that being said in theory, because most parents have that right. One parent can go down the street and get a vaccination, even if the other parent doesn’t agree.
Josh Floyd: [00:11:02] Yes. Now I did find that one case from 2012. So it doesn’t deal with COVID, but it does deal with parents choosing or having the right to choose to vaccine their child. And basically what the court said was kind of the same thing we talked through last time is if you give one person that right, you’re essentially taking away the other person’s right to make that decision, right. If you tell mom you can get them vaccine, you’re essentially taking away that right of dad to be able to choose.
Christina Jimenez: [00:11:30] Did he’s said getting them vaccine?
Josh Floyd: [00:11:35] Did I say that?
Christina Jimenez: [00:11:36] You did say that.
Josh Floyd: [00:11:36] Maybe.
Christina Jimenez: [00:11:37] I don’t think that that’s a word.
Josh Floyd: [00:11:39] I didn’t realize you were a medical doctor. Maybe it’s vaccined in the medical world. And I’m clearly more knowledgeable on medical practices and invasiveness of medical procedures.
Christina Jimenez: [00:11:52] Ok, very good sir.
Josh Floyd: [00:11:54] So getting vaccinated, yes. And so it cites the Texas Health and Safety Code and specifically where it states that, that parents shall obtain immunizations for their children. It’s required. And then it sets out a couple of exceptions. So one of them is, if you’re declining it for a reason of conscience or conscience which includes a religious belief or a medical professional says it’s not good for the child. So in this case, they had a medical doctor saying it wasn’t the best interest and it was up on appeal. So they didn’t hear any evidence after this thing came down. But the court said that there’s no evidence of one of these exceptions. So they relied on the requirement of the Texas Health and Safety Code to get the vaccine, the immunization in this case. So that made them in this case or allowed them in this case. And that’s how they kind of got around the trampling on one parent’s constitutional rights. But that may be an argument. But what if it’s against one person’s conscience and not the others?
Christina Jimenez: [00:13:19] That’s what I’m saying. And so the few times that I’ve had to have this conversation with some clients, basically what I think a judge is going to look at is what does the doctor say? What does the pediatrician say? Does pediatrician say yay or nay, right, which this is such a kind of controversial decision, right. And some doctors for children might say no, right. Others might say yes. I honestly don’t know. And so my thought was, is if you can’t get a doctor to back you up, I don’t know that it’s worth the expense and the time and the energy to go in and litigate it.
Josh Floyd: [00:14:13] It would be fun. It would be a fun case to litigate. It would be a fun case to take up on appeal and see where it lands.
Christina Jimenez: [00:14:21] Yeah. If you want to pay thousands of dollars for fun, just go buy Jet Ski instead.
Josh Floyd: [00:14:25] I want somebody to pay me thousands of dollars to try the case.
Christina Jimenez: [00:14:30] All right. I know. I’m just saying they can just go and just, you know, take a nice trip. Don’t waste it.
Josh Floyd: [00:14:37] So I don’t know that I agree that a doctor saying it’s in the best interest would be sufficient. Yeah, that would be sufficient.
Christina Jimenez: [00:14:46] What want?
Josh Floyd: [00:14:47] Well, I don’t know. But I think that most pediatricians would say that it’s best to get your children immunized or how you say that in the medical world. Immunizations. But there are several people that don’t, right. Even though the doctor says in the best interest, that’s still their right as a parent to make that decision, despite what the pediatrician says.
Christina Jimenez: [00:15:17] Well, it’s their right unless a judge says this is what you’re going to do.
Josh Floyd: [00:15:22] Well sorry, but a district judge saying this is what you’re going to do doesn’t necessarily take away your constitutional right. He could be making the wrong decision.
Christina Jimenez: [00:15:31] But the courts have the right all the time Floyd. Constitutional rights, when they’re allocating these rights in the first place.
Josh Floyd: [00:15:38] No ma’am. They have the power, not the right.
Christina Jimenez: [00:15:43] Isn’t that the same thing?
Josh Floyd: [00:15:45] Absolutely not.
Christina Jimenez: [00:15:47] It is. If you have the power to do something, it gives you the right to do something.
Josh Floyd: [00:15:51] No, it doesn’t. I have the power to chop off somebody’s head with an axe. I don’t have the right to do it.
Christina Jimenez: [00:15:57] I depends on the person. I’m kidding. [] going to have to.
Josh Floyd: [00:16:06] Follow the court orders.
Christina Jimenez: [00:16:08] Right. I mean, I guess at the end of the day, all that matters is what’s in the paperwork. And if the judge says something’s going to have to happen, if you don’t, then there’s consequences for it. No?
Josh Floyd: [00:16:24] Yeah, there is.
Christina Jimenez: [00:16:27] So my thought is, if you have a very strong belief or concern that the child either should be vaccinated or not, I guess either way and the other parent is interfering with your ability to do what you think is right for your child. You probably need to go to court. But the problem is that if somebody believes that the child could be vaccinated, all they have to do is get the kiddo and run them down and then there’s no consequence. If they have a typical order, a general order, they have no consequence.
Josh Floyd: [00:17:14] Yeah.
Christina Jimenez: [00:17:16] Which means that you would have to if the topic is going on and you think they’re going to go and get this vaccine, you’d have to file a TRO extraordinary relief requesting that the court order that they not be permitted to go and get this vaccine until such time as a hearing can be held. You’d have to go into a hearing within 14 days and you’d have to present evidence as to why they should not be vaccinated. And then the judge makes the decision.
Josh Floyd: [00:17:49] So there was in August of last year, a brief file. I didn’t look up to see what had happened. But a brief filed requesting a temporary injunction to the US Supreme Court. The case is an issue out of California, but is it going up to the US Supreme Court? I haven’t looked up to see whether they’ve made a ruling on it yet or not. But there were some decent arguments in there.
Christina Jimenez: [00:18:18] So yeah. I think that again, if you’re concerned and you don’t want the child to be vaccinated, you’ve got to file something with the court. And if the other parents were to go and get the vaccine without your consent, I don’t think that there’s really any consequence for them, right. Assuming that they have the basic medical rights that are typical in all the orders, because it’s not a violation of the order. It’s not an invasive procedure. So interesting. But it’s like we say all the time, guys, in family cases it really is dependent upon the court, the judge and then a lot of times the attorneys and the evidence that they present and judges can do different things in different cases. Yeah?
Josh Floyd: [00:19:17] Should yeah.
Christina Jimenez: [00:19:18] Ok. First question. So Julie, I guess this will go to you. I’ll just read it. So my ex in-laws won’t give me my child back. I gave my ex in-laws temporary guardianship of my child. However, I didn’t, I don’t or I did not give them custody of my child. My child has been over there for two years. I’m trying to get my child back now and my ex in-laws won’t allow me to get my child back. How can I go about this situation?
Julie Prentice: [00:20:00] Well, I mean, I think like everything we talk about, it’s pretty fact specific. I mean, it has been over there two years. So the six months would be met. There is a statutory requirement of six months for standing in most cases. And so how you get your child back, you contact an attorney and you go over the very fact specific pattern and talk to them and see if they can file to get the kid back in your custody. It usually involves a writ and a couple other things. So a couple other filings.
Christina Jimenez: [00:20:35] Yeah. So I hate those situations when we have them and we’ve had them several times and it is such a kind of a risk, kind of a gamble.
Josh Floyd: [00:20:53] Very similar, one ongoing.
Christina Jimenez: [00:20:57] It’s kind of a risk. It’s kind of a gamble. So I think, like you said Julie, it’s very, very fact intensive. And I think it’s going to depend on, Ok, I don’t know if this is mom or dad. I’m going to just say its mom. So if mom had, had lots of contact with the child and was visiting him, you know, maybe standard possession order or every other week and if she could then get access to her child and then decide to keep her child, think that might not be crazy, right. If her grandparents had, had the child and mom had very little access and maybe mom has some drug history or mental health history or something like that, and then mom tries to go and just take the kids without court intervention. I think at that point, grandparents would be put in a position to then file and maybe mom gets into, not gets into trouble, but she probably would be denied visitation and stuff like that, depending on what’s going on with her, right. So Floyd, what happens if mom tells grandparents, hey, I want the kid back and she had been having visitation, everything was normal. And mom says, I want my kiddo back and grandparents won’t do that. What filings typically would you recommend?
Josh Floyd: [00:22:34] So I assume that you had now made the decision to file rather than.
Christina Jimenez: [00:22:39] Well, if she can’t get our hands on the kiddo, then she can’t.
Josh Floyd: [00:22:42] Well, you said she’s had visitation.
Christina Jimenez: [00:22:44] So I’m saying she tells grandma, hey, I want him to come and live with me. And grandma was like, Joke’s on you. You don’t get to see him anymore.
Josh Floyd: [00:22:54] It cuts off all visitation.
Christina Jimenez: [00:22:55] Correct.
Josh Floyd: [00:22:58] You file for a writ of habeas because you have superior right to possession. And go get the kiddo. Now I’m assuming there’s no other orders in place, right. I don’t know. But essentially all you would need is a writ of habeas. Establishing that you have superior right to possession. Judge signs that, sheriff executes it. It’s done and then it’s up to grandma if she wants to file some type of [] or a modification, depending on what’s going on in the case. And so when you’re dealing with this, so you’re dealing with really two different avenues for standing. So the first one is the six months which was you was talking about. But the second one is the significant impairment where if they can establish that if the parent has possession or managing conservatorship of the child, the child be placed in harm. So on one hand, if she could get the child and keep the child for 90 days, right, then that would stop grandparents from having standing under the first statute, right. And then it’s very fact specific whether we would think that grandparents could get to significant impairment, which is a really high burden. But essentially they’re burden anyway to overcome the presumption, the parental presumption. They’re fun. Very strategic.
Christina Jimenez: [00:24:35] Very, very strategic. I’m going to let Mr. Pailin in. He was in court. And so he is now joining.
Josh Floyd: [00:24:42] We need to vote? No. He’s going to make that decision.
Christina Jimenez: [00:24:45] Yes, make that decision. Ok, Floyd, next question. Actually, hold on. Let’s let James get hooked up.
James Pailin: [00:25:02] Oh, hey.
Christina Jimenez: [00:25:06] How are you. How’s court.
James Pailin: [00:25:12] Court went well.
Christina Jimenez: [00:25:15] Good, Excellent.
James Pailin: [00:25:16] Thank you.
Christina Jimenez: [00:25:18] I’m sorry.
James Pailin: [00:25:19] I said, back in one piece.
Christina Jimenez: [00:25:20] Excellent. Awesome. All right. We were just starting on the second question. Floyd Go.
Josh Floyd: [00:25:26] Who’s answering.
Christina Jimenez: [00:25:27] I don’t know. We’ll all answer.
Josh Floyd: [00:25:29] All right. Cool.
Christina Jimenez: [00:25:30] Answer.
Josh Floyd: [00:25:31] Can I refuse a HF test in a CPI if I’m requested to submit one?
Julie Prentice: [00:25:41] I think it’s hair follicle.
Christina Jimenez: [00:25:42] Hair follicle and that CPS.
Josh Floyd: [00:25:45] CPS, Got it. Wow. All right. I had an open CPS case about four years ago. I passed my urinalysis, but failed my hair follicle test. My kids were removed right before last year ended. There was another CPS and I was asked to submit a urinalysis, but not a hair follicle. I passed my urinalysis and as the results were, they felt there was no need to open a case. Well, now here it is 2022, and I have a new CPS and I know they will request a urinalysis and I’m okay with that. But if they request a hair follicle, I’ll politely decline. Understanding the circumstances of my last case being that drugs were involved, as I stated before, a hair follicle wasn’t requested last time. But if they request one, can I politely decline? Will it go against me or make me look a suspect in any manner? Thank you for your time and please, any and all advice is welcome. We don’t give advice here. I refuse to lose my kids to some haters with hate in their heart for me. Sincerely, a single mom of three wonderful, beautiful girls. That’s probably the sweetest question we’ve ever had.
Christina Jimenez: [00:27:05] I know.
Josh Floyd: [00:27:08] I felt that deep.
Christina Jimenez: [00:27:13] I’ll answer this one because it involves CPS. So number one, I’ll just say if ever you are being investigated by CPS and typically it’s one of these things where they just kind of knock on your door and they’re like, Hey, we’re CPS and we need to talk to you about this allegation that has occurred. So what typically happens is, is if anybody has any concerns for the safety and well-being of your kiddos, they can call a hotline. It’s the CPS hotline, and they get to report what they perceive to be an allegation of abuse or neglect. And at that point the department is mandated whether or not, they think that you’ve actually done it, none of that really matters. They are mandated to go out and investigate this allegation. So typically what will happen is, is CPS knocks on your door. They say, here’s the allegation and we need to talk to you and we need to see the kiddos. You have to allow them to lay eyes on the children. And I think they have a requirement of like within 72 hours or something, they have to. Julie, do you know or do any of you all know?
Julie Prentice: [00:28:28] I think its 72 hours, but I’m not a 100%.
Christina Jimenez: [00:28:31] So I’m pretty sure it’s 72 hours where they have to at least lay eyes on the kiddos to make sure that they are safe. So I’ll tell all my clients, let them see the kids, but they don’t need to necessarily interview the kids, talk to the kids or and I don’t want you talking to them at all. Because we don’t know what the allegations are and you don’t know what could potentially harm you, right. So as it pertains to the drug screens. If there are allegations of substance abuse, a lot of times they will require you to do EUA or a swab, like a mouth swab. And when I say they require you, they’ll say, hey, we really need you to agree or to submit to all of this. But you are within your right to politely decline and say, I don’t want to take this drug test, right. Depending on what the allegations are, if you politely decline, then at that point the department has the ability to file an emergency motion with the court basically say, hey, we requested a drug screen, a hair follicle, UA, a mouth swab or whatever from mom.
[00:29:41] Mom is refusing to submit to this test. And we now judge, want you to issue a court order requiring her to submit to this test. I’m fairly certain you have to set that for a hearing. But if the court orders that, then now you have to go, otherwise there’s going to be some consequences for you. So I would say if you’re submitting to EUA, then obviously do that. If you’re ok doing a swab, do that. I would strongly encourage you to talk to an attorney first and hire someone first so that they can help to facilitate that. There have been plenty of times where one of my clients has contacted me and said, Hey, there’s these allegations and they want me to do all this stuff and I will tell CPS we’re not doing it. And the reason why we’re not doing it is because these are false allegations and we suspect we know who’s making these claims and we’re just not going to comply. And when it’s coming from an attorney, sometimes it’s perceived a little bit different than if you were to say it, right. So that would be my recommendation. Yeah. I hope everything works out. Yeah. That sucks. So who’s doing the next question?
Josh Floyd: [00:31:05] JP, you up.
James Pailin: [00:31:08] All right. So let’s see here.
Josh Floyd: [00:31:13] Who’s reading? Who’s answering?
Christina Jimenez: [00:31:15] I’m tired of hearing myself speak, so I will do neither.
Josh Floyd: [00:31:18] That makes everyone on here.
Julie Prentice: [00:31:22] Means James.
James Pailin: [00:31:24] Ok, right. So here, let me read and answer. How about that?
Josh Floyd: [00:31:28] Nope. Can’t do that. That’s not the way it works. Julie, you can read.
James Pailin: [00:31:33] All right.
Julie Prentice: [00:31:34] Will it be 50-50? I recently discovered I am pregnant. The father is arguing that he wants 50-50 custody of the baby. He lives 5 hours away and I am uncomfortable with that and would prefer it be weekend visits for a couple of hours until the baby is older and then we can discuss future plans.
James Pailin: [00:31:52] Hey, will it be 50-50? Well, is he hiring us? I’m just kidding. So that’s going to depend. That depend, seems as though you are seeking to be as a sole managing conservator with the right to designate where the child stays. And I don’t know, he may or may not have an issue with that. Best case scenario, you all can come to an agreement or it doesn’t look exactly like 50-50, but both parties get what they want. But the way things seem to be going now, you all seem to be on opposite ends of the spectrum. And this looks to be what we would call contested, where you would have to present your case on why you believe it should only be 50-50 or you shouldn’t be 50-50 and he should get some form of standard possession. Sounds like what you’re looking for. And then he put on his case of why he believes he should have 50-50 custody. It’s going to be largely dependent on the facts, whether or not there’s been family violence, whether or not, I mean, all sorts of things could benefit your case as to why you want 50-50. But I mean, that’s what it’s essentially going to come down to, your facts versus his facts, because at this moment, I mean, congratulations on having the baby. But at this moment, it’s too early to say what it will turn out to be. Anybody else want to jump in on this?
Josh Floyd: [00:33:35] So I think it’s going to depend a lot on which court you land in, right. I mean, different judges have different opinions on 50-50. There’s been a move towards 50-50. That I’ve seen a lot in the past few years. And that’s, I think, went up to legislatures a few times. But I think there’s been a move towards that way. I think some judges are pretty dead set against it and some like it. So it depends. But it’s a baby, baby, baby, baby, baby, right. You’re 5 hours away. I don’t know if I’ve ever seen a judge order 50-50 when you’re 5 hours away because it doesn’t work.
Christina Jimenez: [00:34:21] That’s not true. The kiddos are like three and they’re not in school and maybe they’re older than that depending on the situation. We’ve had that happen like a week in a week or two weeks in two weeks. Yeah.
Josh Floyd: [00:34:37] Maybe so. I mean, I could see that. But once they reach school age, then we’re back in the court fight again, right.
Christina Jimenez: [00:34:43] Right.
Josh Floyd: [00:34:46] I don’t think the fact that it’s a baby, baby, baby, baby should be a determining factor. Most courts disagree with me, but I think they’re wrong.
Christina Jimenez: [00:35:01] Yeah. So I say 50-50 has seen everything which we can say. It depends on the facts. So hypothetically speaking, if they were married and maybe they had two older kids and dad had been extremely active and we represented some fathers that were stay at home fathers and they did everything. And the wife was the breadwinner of the family. And so I think in those situations, in my opinion, whenever we have babies that are born, if they’re husband and wife and husband has been really active in let’s say they’re four months old and has been really active, it kind of comes down to this, I think a trust factor for the judge. Do we think the dad could actually manage this little tiny baby? And if he can prove that he’s been doing it, then I think courts are going to be more inclined to potentially grant more time, right.
[00:36:07] And that kind of, I guess, goes to your argument, Floyd, is I don’t think to say it’s not going to happen. It’s not appropriate because it’s just going to depend. You have other kids. One of the things that I like to tell my fathers is if we are fighting for custody of a tiny baby or really anybody under the age of four or five, if we have a female presence in the home, right. So if it’s like a grandma or an aunt or somebody that’s living with them, that is really, really helpful. But then also showing, here’s all the feedings that I’ve done and here’s all the nights that I’ve been awake and I know how to bathe them and I changed diapers and do all that stuff. The more evidence you can present, the more likely it’s going to be a more possession. Floyd or one of you guys you all talk through like kind of the stair step position and what we see in a lot of courts.
Josh Floyd: [00:37:12] This is a very touchy topic for me. I don’t like that dads have to prove that they’re going to be a fit parent or that they have to be with aunt or mom. And mom doesn’t have to prove that they’re going to be okay with the child. Bullshit.
Christina Jimenez: [00:37:31] But here’s the thing Floyd, you were not nearly as sensitive about this topic until you had cases. And then all of a sudden it was war. Any of our cases where we’re repping dads and the mom is trying to claim that he is not competent to take care of a child, Floyd gets pissed. He gets very angry because you’re a very active father and you’re very good at parenting your children and you handled all of those issues. So, you know, if I can do it, there’s thousands, hundreds of other fathers that can do the same thing. So I get it. I get it, Floyd.
Josh Floyd: [00:38:13] Well, the code says that gender shouldn’t matter, right. And that a lot of people think that. Well, if Dad can prove he’s a good dad. No, screw that, right. How come Mom doesn’t have to prove it?
Christina Jimenez: [00:38:27] Listen, I’m not saying that it’s right. I’m just saying that if we’re litigating that issue, that that’s probably something that we should set up and we should think about, because not everyone has your opinion, Mr. Floyd.
Josh Floyd: [00:38:41] I believe that is correct, that judges inappropriately look at those things when they shouldn’t.
Christina Jimenez: [00:38:50] Yes. But there’s lots of things where that, you know, other issues where that happens, where that particular judge has a very strong opinion about one thing. And you have to know the judge and you have to know this is going to be important to them and you’ve got to present evidence to make them feel more comfortable with your argument. That’s part of the strategy.
Josh Floyd: [00:39:10] So stair step. You want to talk about stair step?
Christina Jimenez: [00:39:13] Yes, we digress.
Josh Floyd: [00:39:15] Before we wage war. Who wants to talk about it? I just talked, somebody else talk. Ok, I’ll talk. So there’s different schedules for children under three because Dad’s presumed not to be a fit dad and can’t take care of the child. That’s not really a presumption. I’m just taking a jab. So standard possession doesn’t start until the child’s three. And so different courts have different schedules that allow for step up periods of possession a couple of hours every few days.
Christina Jimenez: [00:39:55] Hold on Floyd. Let me correct something you just said. You said standard possession doesn’t start until they’re three. So what the code says is that it’s presumed to be in the best interest of the child, that standard possession shall take effect when the child is three years of age or older. And under the age of three it is as the court aims to be in the best interest of the child, right. And so under the age of three, that’s where all of this crap that we were just talking about comes into play, because the judge could do a 50-50. We’ve had cases where dad, you know, kiddo was, what four months old and dad who won primary custody. That was on Floyd. That was like right after was born. So he was hot, he was ready to fight. And so it’s just as the court deems appropriate.
Josh Floyd: [00:40:44] Right. So yeah, every like six months you get a little more possession, get blessed with a little more time with your child. And then at three, the standard possession or presumption applies. So you get 40% of the time.
Christina Jimenez: [00:41:06] You know, I’ll just say and I understand like why it’s done. So a lot of the stairs set possession schedules. It’s something like 2 hours on Tuesday, 2 hours on Thursday. Let’s just say from 0 to 1. 2 hours Tuesday, 2 hours Thursday, 2 hours on a Saturday and maybe like 2 hours on a Sunday. That’s not a lot of time. And typically, it’s dads, right. And the idea about when they’re developing these stair step possession schedules, the argument is, is when children are that age they need to have more frequent contact with an individual to develop that kind of bond with them. And so that’s why instead of doing first, third and fifth weekends, they parcel out this every couple of days you’re seeing the child. I just can’t imagine only seeing my kiddo 2 hours on a Tuesday and 2 hours on a Thursday. Floyd don’t cry. I want you to cry on Facebook Live. James is already getting pissed. Look at him. He’s like, Oh, hell.
Josh Floyd: [00:42:22] That would not happen to me.
Christina Jimenez: [00:42:25] James is about to also have a little baby on the way, too. Yeah.
Josh Floyd: [00:42:31] James and I already had the talk.
Christina Jimenez: [00:42:33] Yeah. It’s just you know and I get it. I guess I kind of get it. I hate it. Hate when that happens to one of our clients. And it’s typically the fathers because it’s not enough, not enough at all. So moving on before Floyd’s head explode. All right, who wants to read the next question? Julie or James?
James Pailin: [00:43:05] I will read the next one and you all have to forgive me. I was on the road for the beginning, so I don’t know what was read first, so I’m going to try this one. Can I sue ex-husband for past injury? Does that sound familiar anybody?
Josh Floyd: [00:43:18] Negative. You can go ahead with it.
James Pailin: [00:43:21] Ok. I am 51 years old now. In my first marriage when I was 28, my husband hit me in the face and knocked down my teeth out. I have since suffered multiple procedures and never have been able to afford a permanent dental procedure. Can I sue him to pay for a permanent dental treatment? Julie, what do you think?
Julie Prentice: [00:43:45] So first of all, I’m sorry you went through that. That sounds absolutely awful.
James Pailin: [00:43:49] Yeah.
Julie Prentice: [00:43:50] Second of all, probably not. Statute of limitations is pretty clear in the code for criminal. It can range anywhere from 2 years to a lifetime, but those are very substantial cases. And on the civil side, I think it ranges from 1 to 5. And personal injury, I believe, is 2 years. So you would have had to have done something when you were 30 in order for to have any sort of recourse in the legal field.
Christina Jimenez: [00:44:21] So the other thing that I think is important to remember is when you’re going through a divorce proceedings, you can actually allege those civil, I guess what is it, a civil request or some civil [cross-talk] within your divorce proceeding? And you can request punitive damages, reimbursement of medical expenses. What is the other like future expenses, pain and suffering, is that one?
Josh Floyd: [00:44:57] Suffering is one.
Christina Jimenez: [00:44:58] So we don’t typically do that a lot in ours. And we’ve talked about it before that we really need to start focusing on that a little bit more. Where we try to focus, especially if there was a case like this is a disproportionate share of estate, basically arguing probably cruelty during the marriage and we should get more than just 50-50. But you can file civil claims in your petition for divorce. And that’s probably something you should have done when you’re going through all that. And there’s not a whole lot you’re be able to do for it now. So sorry.
Josh Floyd: [00:45:37] And I concur with all of the statements.
Christina Jimenez: [00:45:40] Finally, you agree with me on something today. Next, who wants to read.
Josh Floyd: [00:45:54] Julie is the only one that has not read.
Julie Prentice: [00:45:56] I’ve read, but I will read again.
James Pailin: [00:45:59]
Julie Prentice: [00:46:01] Thanks, James. I appreciate that. [Cross-talk]
Josh Floyd: [00:46:05] Sorry. It was two sentences. I must not have heard it so quick.
Julie Prentice: [00:46:10] Can I have overnight visitation with my daughter, even if she’s under three? My child’s mother separated from me since my daughter was born. My daughter is now six months old.
Christina Jimenez: [00:46:20] I’ve been trying to make it that explicit.
Julie Prentice: [00:46:23] Absolutely. [Cross-talk] After three months of barely seeing my daughter, I finally get to see her because of court set visitations. We are now negotiating new terms. And she is telling me that I’m not allowed to have my daughter overnight until she is three. I requested we discuss overnights when she is 15 to 18 months old but was rudely denied. I understand that’s basic, but I live not even 10 minutes from her. I have a whole room set up for my daughter. I meet every term she gives me for visitations and have been paying child support. I’m trying my absolute best to care for my daughter and be in her life, but it seems like her mom doesn’t want me there. I don’t want to push and cause an issue, but I feel like I deserve more time with my daughter.
Christina Jimenez: [00:47:17] I’m not question.
Josh Floyd: [00:47:22] You’re absolutely right. You do. Give me a call. Can you have overnights? Depends on the judge. Some of them recognize rights of fathers. Some really don’t. Just kidding that was a bad jab. But you can make an argument for overnights even from the day they’re born. The fact that you live 10 minutes from her, it’s probably a good idea. I mean, it will benefit your case. And the fact that she’s not co-parenting if she has a good reason, which I don’t think there really is a good reason for not wanting overnights until 15 months. But if she can come up with some excuse or something that she can justify, then whatever. But if she’s just being a jerk and not co-parenting and interfering with that relationship, forget overnights. Let’s fight for custody. That’s kind of my take on it.
Christina Jimenez: [00:48:24] So I think for this case, because this is in a county that we don’t really practice in. What I would encourage you to do is find you a good attorney in that area and talk to them about what the court is more inclined to do in that jurisdiction. Because all judges they have kind of their standard for children under the age of three, right. So what I don’t want to happen is that you start spending a whole bunch of money litigating an issue that you are potentially not going to win, right. So the other thing that bothers me is they’re saying that or he says that he just now got a court ordered visitation and the kid is only six months, which means that that’s probably in the order. And so to try to go back so quickly, it probably won’t work because you have to prove what we call it, a material substantial change in circumstances to modify possession access.
[00:49:34] And if you just got an order, it’s highly unlikely that judge is going to modify it. But I do agree with Floyd. A lot of times when we have a case like this, when a parent is just not co-parenting, not cooperating. Instead of asking for more visitation, we just ask for primary custody because it is very, very important that if you have that right to designate the residence and you have control of that child, that you are being responsible with that right. And you are not using the child as a bond. And if you are, most judges don’t like that and they might take away that right.
Josh Floyd: [00:50:16] Comment. They just strike me right using the child as the pawn that hit from yesterday. My God.
James Pailin: [00:50:24] Floyd, I did have a follow up on this. And I guess tying in to that earlier question, when newborns right, in children who are of younger years, I understand that some mothers breastfeed. I guess could that indeed be a barrier for those overnight visits or would it be an added burden if I guess they’re required to, I guess, pump in advance in order for dad to take the child overnight?
Christina Jimenez: [00:50:56] I’m just going to put Floyd in a waiting room real quick.
James Pailin: [00:51:00] I’m just saying. I just see that argument.
Josh Floyd: [00:51:02] Yes James, that is frequently the excuse that mothers use to prevent fathers from having a lot of time with their child.
Christina Jimenez: [00:51:10] So I will tell you James, that again, it’s fact intensive, right. So we’ve had mothers will come in and they’ll make that argument. Well, I nurse and so dad can’t take the child for longer than 4 hours. And then we figure out that kid is in daycare for 10 hours a day and so if kiddo can be in daycare for 10 hours, he most certainly can be with dad for 10 hours, right. Or we can find situations where mom is going away on a girl’s trip overnight and leaving the child. So the argument then becomes if you make those kind of accommodations, then for others you can most certainly make it for Dad. And so I’ll say that a lot of times courts are assuming, let’s just say mom staying home and mom is in fact nursing every 4 hours and she’s not pumping and she’s not leaving the child for an extended period of time. Courts are pretty sympathetic to that, you know, to that argument. And it does often result in dad only getting sporadic time with the child. But it’s going to depend on is it really just an excuse or is it really something that she’s doing for the child.
Josh Floyd: [00:52:27] I kind of, on this issue, understand the judge’s position because I think it’s a constitutional right possibly for her to be able to breastfeed her child. I know it is right. She has that constitutional right. But what has to be balanced against that is the father’s right to be with his child. So is breastfeeding, does that supersede the development of relationship between the child and father? That’s kind of the decisions being made.
Christina Jimenez: [00:53:00] Yeah. And again, it depends on the judge and it depends on the arguments, right. And that’s the thing that I think is so important that people kind of listen to is every attorney that you speak to is going to have a different opinion on whether or not you will be able to get a certain result, right. And I can’t tell you the number of times I just had a consultation two days ago where the guy was like, I’ve spoken to four other attorneys and all of these attorneys are saying that I don’t really have a shot to win custody of my five year old little girl. And so I tells him about the facts and I’m like, I think you do have an opportunity to maybe even get primary custody, but most certainly get 50-50 custody. And so you have to be careful because you don’t want to just look for that lawyer that’s going to be give you a yes answer and then ultimately screw you over, right.
[00:53:58] We’ve got to have accountability, but it just depends. It depends on your judge and it depends on the lawyer. And you have to work a strategy, right. And I think that’s where our team is really different is if we can’t or if we don’t think we can get a result, we’re going to tell you we don’t think we can get a result. But if the client insists on getting the result, then we start working a plan in order to ascertain that result, right.
Josh Floyd: [00:54:24] So most of the time when consultations come in and say something like that, like I’ve talked to other firms, they tell me I don’t have a chance. I usually agree with them. Yeah, you’re right. If you hired them, you wouldn’t. But you’re not.
Christina Jimenez: [00:54:36] It depends on the case too, Floyd. You’re on a roll today. You’re angry today.
Josh Floyd: [00:54:43] Yes. That’s a long day.
Christina Jimenez: [00:54:45] That’s a long day. So one more question and then we got to get moving.
Josh Floyd: [00:54:53] My legal rights to see my son.
Christina Jimenez: [00:55:04] This is although I work and she stays home. That’s a good question.
James Pailin: [00:55:08] Ok.
Christina Jimenez: [00:55:10] Shall I read it?
James Pailin: [00:55:12] Sure.
Christina Jimenez: [00:55:13] I work and she stays home. How do I leave if I can’t afford another residence plus the mortgage while divorcing an abusive wife? Constant arguments about every 36 months used to be after the kids went to bed, but now they’re old enough to understand, it is with them in the room. When she controlled the finances, I was constantly questioned and ridiculed for any purchase that could have and should have been spent for the family. She has stolen my debit card from my wallet and or reported it lost or stolen without notice on numerous occasions. Now that I control the finances, she resents the loss of control and accuses me of spending frivolously, even without seeing the balance history. I choose not to feed into her insulting, emasculating, argumentative commentary and leave the room or house until matters can cool down because no solution was going to be reached at that juncture.
[00:56:05] For the I am accused. So I guess for leaving I am accused of abandonment of my family since she is the oldest of five siblings and I am an only child, she constantly refers to me as a spoiled kid with no problems or responsibilities who is never ready for marriage or kids. I am addressed as a worthless husband and insinuating to be a deadbeat dad now in front of the children. I’ve been slapped repeatedly and told I deserve it.
Josh Floyd: [00:56:39] All right, I’ll take this one. So the question is, what’s the question?
James Pailin: [00:56:49] How do I leave if I can’t afford another residence?
Josh Floyd: [00:56:54] You don’t. You make her leave. Seriously, right. Call for divorce depending on how frequently and how recent the family violence was, whether you have evidence of it, things like that. Possibly a protective order, potentially a kick out order to where you can get her removed from the home. Temporary hearing. You make your arguments. Hopefully you’ve got enough evidence. And the judge can make her move out and leave you there with the kids.
Christina Jimenez: [00:57:32] Question. If he knows that she has a tendency of slapping him around, can he set up cameras like in the living room or in the kitchen in an attempt that wife doesn’t know about, in an attempt to get these acts on video?
Josh Floyd: [00:57:53] Can he set up cameras where?
Christina Jimenez: [00:57:55] In the living room, in the kitchen and in the public spaces.
Josh Floyd: [00:57:59] I believe so. Yeah. I don’t know if the judge would like it very much if it was viewed as baiting, but I don’t see any reason why he would be able to do that.
Christina Jimenez: [00:58:08] Okay. So he gets these videos and we get proof that Wife has committed acts of family violence. Does he call the cops?
Josh Floyd: [00:58:19] Absolutely.
Christina Jimenez: [00:58:20] Ok. And why is that important?
Josh Floyd: [00:58:26] Couple of reasons. Actually, I’m glad you asked. First of all, if you actually call the police, judges actually tend to believe more that it happened. A lot of times family violence and allegations of such get thrown around for strategic advantage and things like that. So if you call the police, it’s more credible. You’re going to have an independent third party that doesn’t have an interest in it, giving a report and their opinion, possibly making an arrest. There’s going to be photographs, statements, things like that, documented if the officer’s doing his job. And of course, all of that is evidence that can be used and will be used against them that you probably wouldn’t otherwise obtain.
Christina Jimenez: [00:59:16] What about these comments where she’s like talking down to him in the presence of the kids and yelling and doing all that crap?
Josh Floyd: [00:59:23] I think it’s rude, honestly.
Christina Jimenez: [00:59:26] I would agree. But do you think that it would help them in a custody case and in divorce proceedings?
Josh Floyd: [00:59:32] Yes.
Christina Jimenez: [00:59:33] So I will say, like judges typically don’t like it when you guys are yelling and cursing and screaming and lord forbid, in an audio recording, you hear kids in the background and you’re acting crazy like that. Most judges typically have problems with that. And so I’m married. I’ve been married for freaking 14 years and I know. Sorry. But we have arguments, everybody does, right. Everybody does. We seriously do our best to shield those types of conversations from our kiddos because then it becomes mental health issues for your children, right? So don’t be an asshole. Don’t do that right in front of your kiddos because if you get caught doing it, a lot of judges will restrict your visitation. They’ll order that you go to counseling, they’ll order all sorts of craziness because you’re clearly not acting in the best interest of your children. So if you’re going to emasculate it, well do it behind closed doors is the legal advice.
Josh Floyd: [01:00:41] What? So I mean, I think that would help her argument. But if he can still prove that she is being very degrading and psychologically abusive, I think it still helps him.
Christina Jimenez: [01:00:56] Even if the kids are not there?
Josh Floyd: [01:00:57] Yes, that’s rude. You can’t be just talking to people like that.
Christina Jimenez: [01:01:01] No. I don’t think judges care. If two people are going back and forth and like husband and wife and they’re being ugly to one another and saying ugly things but the children are not exposed. Judges, they care but they’re not going to take away a child.
Josh Floyd: [01:01:17] That’s not what’s happening. She’s just straight out degrading him.
Christina Jimenez: [01:01:21] I understand, Floyd. What I’m saying is, is if the children were not present and she was doing that, she’s doing it in front of the kids. That’s the problem.
Josh Floyd: [01:01:30] That is a problem. Yes, I think it’s a problem that she’s doing it at all.
Christina Jimenez: [01:01:34] And you think that you could win custody if there was zero evidence that it ever happened in front of the children? Just not the hitting, just the nasty talk. No. Just say no. Just admit you’re wrong. It’s okay. I’ll just say it for you.
Josh Floyd: [01:01:51] I think it’s going to depend on the facts, because I think that if I could use that to establish an inability to co-parent because she is psychologically abusive, maybe I have a shot.
Christina Jimenez: [01:02:03] I think you’re crazy. I don’t think it would happen.
Josh Floyd: [01:02:06] I forgot default to Mom’s. Yeah, all that stuff.
Christina Jimenez: [01:02:09] We’ve had lots of cases where, like we had that one case where the guy, the dad was texting the mom. Like you’re nothing but a clown ass and nobody wants you and you’re worthless. Like really, really nasty stuff. And he definitely got an ass too. And when we were in court. But it didn’t have an impact on custody because you don’t need to be talking to the mother of your children that way. But how do you prove that it had some sort of a negative impact on kids? So I don’t know. And again, it depends on the court. So with that being said, we’re over. We’re going to be in trouble. Sorry Katherine. Let me be like I just got that last word in and then just said, we’re done. You like that? I like that. So here’s our disclaimer we give at the end of every single Facebook Live that we do basically says, make sure that you’re hiring an attorney. Don’t accept this as legal advice. Go and tell your story so that you can make sure that you are getting what you need to get and doing what you need to do. And with that being said, I hope everybody has a wonderful weekend. Ok.
