Texas Divorce Attorney Blog
A change in Texas custody may be justified even when both parents love and care for the child. A custody modification is appropriate when there is a material and substantial change in circumstances of the parent or child and if the change is in the child’s best interest. Sometimes, changed circumstances put the non-custodial parent in a better position to provide for the child’s best interests, even if everyone agrees that the custodial parent loves and cares for the child.
A mother recently challenged a custody modification. The parents were originally named joint managing conservators under the divorce decree, and the mother was given the exclusive right to determine the child’s primary residence. The mother was also granted the exclusive right to receive child support. The father gained expanded possession rights through subsequent agreements, including a mediated settlement agreement (MSA). The court set forth the terms of the MSA in a 2015 order.
The father later petitioned for greater periods of possession and the right to make educational and medical decisions. He also sought the exclusive right to determine his son’s primary residence so his home would be the child’s primary residence during the school year.
According to testimony at trial, the child had a limited ability to communicate effectively. He had learned to use an iPad to communicate, but needed attention, supervision, and guidance to use the tablet.
The trial court found the father had taken the lead in ensuring the child received therapy to develop his communication skills. The court modified the 2015 order to give the father the exclusive right to determine the child’s primary residence and make educational and medical decisions for the child, with input from the mother. The trial court also ended the father’s child-support obligation and ordered the mother to begin paying child support. The mother appealed.
The mother challenged the sufficiency of evidence of a material and substantial change in circumstances and that the modification was in the child’s best interest. The parties testified that the mother had historically been in charge of finding educational and healthcare providers for the child. However, there was evidence that the father took the lead in ensuring the child received therapy after the mediation. Additionally, there was evidence suggesting the mother refused medical and educational opportunities for the child without reasonable justification following the mediation.
The appeals court found evidence on the record that showed the mother was incapable of ensuring the child went to his appointments before mediation. However, there was some evidence that showed she had not provided the necessary time and support for the child to get regular therapy after the mediation. There was evidence his speech therapy had been terminated because the mother missed appointments and cancelled appointments on the same day. There was also evidence a second provider had discontinued the child’s treatments because the mother cancelled appointments too frequently.
After the mediation, the mother had another son. She testified that caring for her baby limited her ability to participate in her older child’s therapy. She said this caused her to miss at least half of the appointments. The father attended all of the appointments that were scheduled during his time with his son.
The child was trained on an iPad after mediation and it became his primary means of communication. Professionals testified it was critical for him to use the communication device. The evidence showed the father supported the use of the iPad and ensured he used it properly, while the mother resisted its use.
The appeals court found the trial court could have reasonably found material and substantial changes in circumstances of the mother and child. The court could have found the modifications were in the child’s best interest. Although noting the mother cared greatly for the child, the appeals court found the trial court could have reasonably concluded the father was better able to address the child’s needs and get him appropriate therapy and education.
The mother also challenged some of the trial court’s findings, including a finding that the child’s ability to communicate would “be the most important goal of his childhood education.” The court found the record showed the child’s ability to communicate was a “crucial goal” of his education. The finding was supported by testimony from a board-certified behavior analyst and a neurophysiological evaluation.
The appeals court found the trial court did not abuse its discretion, and there was sufficient evidence in the record to support the findings.
The mother also argued the court abused its discretion by terminating the father’s child support obligation and ordering her to pay. She argued that the father had not requested support. The appeals court found, however, that she had failed to preserve the error.
She also argued there was insufficient legal and factual evidence to support the modification of child support. There was evidence both parents were employed with steady incomes. Neither party presented the mother’s wages or other evidence of her resources. Without evidence of her wages or resources, Texas law requires the court to presume her wages are equal to the federal minimum wage for a 40-hour week. The appeals court found the mother’s obligation under the guidelines if she earned federal minimum wage for 40 hours per week would be more than the amount the court ordered. There is a presumption that the amount calculated using the guidelines is reasonable and in the child’s best interest. The appeals court found there was sufficient evidence to support the amount the court ordered the mother to pay. Both the trial court and appeals court acknowledged that the mother cared for the child. The trial court found, however, that the father was better able to support the child’s therapy.
If you are seeking or fighting a custody modification, an experienced Texas custody attorney can help protect your rights to your child. Call McClure Law group at 214.692.8200 to schedule a consultation.
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