Texas Divorce Attorney Blog
In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them. If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met. A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.
The parents lived together with the child until the mother moved out of the home. The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence. A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.
When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport. The father requested findings of fact and conclusions of law, then appealed.
The father argued the trial court abused its discretion by granting the mother the exclusive right to the child’s passport because there was no evidence at trial regarding which parent should have the passport. The father did not cite any authority that would limit the court’s discretion in granting the right to possess a passport. The appeals court also found no support for his argument that he should be granted the right to the passport as the custodial parent unless he was unfit. The Texas Family Code does not identify this right as one that belongs to the custodial parent. Furthermore, there is no presumption in Texas law that the custodial parent should have the right to keep a child’s passport.
The father also argued passport possession was not raised at trial. The appeals court found that the father failed to object to the provision during the trial court proceedings and therefore could not raise it for the first time on appeal. The appeals court made similar findings regarding the father’s failure to object to a number of other issues he raised.
The father argued the court abused its discretion by ordering him to participate in the Battering Intervention and Prevention Program without a finding of family violence. The appeals court noted, however, that there is no restriction in the Family Code limiting the court’s discretion to order a Battering Intervention and Prevention Program if it is in the child’s best interests. The appeals court found “ample” evidence supporting the order. There was an Agreed Final Protective Order that found family violence had occurred and was likely to occur again. The child’s guardian ad litem testified that she thought the father needed anger management training on how to communicate without getting violent. She said she could only recommend the standard visitation schedule if the father completed the program. Although there was conflicting testimony as to whether the father committed domestic violence, there was undisputed evidence of a volatile relationship with a significant conflict between the parents. The mother testified that the parents’ fights caused anxiety to the child, and the appeals court found sufficient evidence to support a finding that it was in the child’s best interest for the father to complete the program before getting increased possession. The appeals court therefore found no abuse of discretion in this decision.
In this case, there was a protection order in place at the time of the trial that supported the court ordering the Battering Intervention and Prevention Program before increasing the father’s possession of the child. The case suggests, however, that such an order could be upheld even without the protection order. The trial court has broad discretion in determining the best interests of the child and does not abuse its discretion if there is some substantive and probative evidence supporting the decision.
If you are involved in a custody dispute, McClure Law Group can help you. Call 214.692.8200 to schedule a meeting with a knowledgeable Texas family law attorney.