Sunday, June 27, 2010

Makeup Time for Parent Wrongfully Denied Visitation

ROMERO v. ZAPIEN

No. 13-07-00758-CV
Court of Appeals of Texas, Thirteenth Distrct, Corpus Christi, Edinburg

June 25, 2010


[PART 2 of 3]

In a recent decision, the Texas Court of Appeals, Thrirteenth District, has reaffirmed many principals of family law as it pertains to child possession and access and child suppport. In its recent ruling in ROMERO v. ZAPIEN, No. 13-07-00758-CV available at http://tinyurl.com/29nwqlr, the appeals court addressed the issues of child support, possession and access, and make up possession and access time when a parent has been wrongfully denied court-ordered access.

Makeup Time

In this case, the mother repeatedly denied the father visitation for about one year. During that time, the possession order that was in place would have provided the father with 97 days of possession of the child. When the trial court ordered that the father receive an extra 7 days of possession and access to make up for those 97 days, the father appealed claiming that he had been cheated out of time with his daughter.

The appeals court agreed with the father. The Texas Family Code says a trial court MAY grant makeup time to compensate a parent for lost time with the child. Tex. Family Code § 157.168(a). However, when the trial court does award makeup time, it MUST be of a similar duration and nature as the time that was wrongfully denied. Tex. Family Code § 157.168(a)(1).

Here, the father had been denied 97 days of unsupervised visitation yet the trial court only awarded 7 days of makeup time. While the appeals court noted that makeup time does not have to be day-for-day, it reasoned that granting 7 extra days to make up for 97 wrongfully denied days was unfair and it instructed the trial court to reconsider the issue in light of this ruling.

1 comment:

  1. NOTE: The court specifically rejected the father's contention that by not sharing possession and access on a 50:50 basis his constitutional right to raise his daughter was being violated.

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