In a Texas custody case, the court must designate who will determine the child’s primary residence and establish the geographic area within which the child’s primary residence must be or specify that there is no geographic restriction. Tex. Fam. Code § 153.134(b)(1). The court bases its determination on the specific facts of the case. The trial court also has discretion to impose restrictions on a parent’s possession and access to the child that are in the child’s best interest. A father recently challenged a number of issues related to his possession and access to his children.
According to the opinion of the appeals court, the parties married in 2017 and had two children together. The mother petitioned for divorce in 2020, requesting the father have supervised possession of the children, submit to random alcohol and drug testing, and use a Soberlink monitoring device. A number of witnesses testified, including a custody evaluation expert and a co-parenting therapist, both of whom the court found credible. The final divorce decree named the parties joint managing conservators but gave the mother the exclusive right to designate the children’s primary residence with a geographic restriction of Williamson and contiguous counties. The order provided for a step-up possession schedule for the father and limited both parents’ romantic partners being around the children.
Geographic Restriction
The father appealed, challenging the geographic restriction. He argued it should be limited to Williamson County without including contiguous counties. He argued that it could be very difficult for him to attend activities and appointments if the children lived an hour away.
The child’s best interest is the paramount consideration when the court establishes the child’s primary residence and the court must consider the goals of assuring frequent and continuing contact with parents who act in their best interest, providing a safe and stable environment, and encouraging parents to share the rights and duties of raising the children.
The child custody evaluator recommended the children live “within Travis, Williamson and contiguous counties.” She explained the father had been living in a rental home and she was not sure what the parties were going to do. She stated her intention was “for these parents to live close enough that the kids are not burdened by. . . spending an hour in the car each.” The mother testified she was living with her parents.
The appeals court concluded the custody evaluator’s recommendation and testimony were evidence of a substantive and probative character supporting the geographic restriction. With a lack of certainty regarding the parents’ future living arrangements, the court did not abuse its discretion in imposing a geographic restriction of Williamson and contiguous counties.
Conditions on Father’s Possession and Access
The father also argued the district court abused its discretion by subjecting his possession to conditions related to substance and alcohol use, requiring him to keep using a breath-alcohol content monitoring device, and requiring him to submit to random drug testing.
The appeals court noted these conditions were based on evidence of the father’s history of addiction and drug and alcohol abuse. He said he had used alcohol since he was 15 years old and told the custody evaluator he experienced withdrawal symptoms after two days without alcohol. The custody evaluator diagnosed him with moderate alcohol abuse disorder and moderate substance abuse disorder. The father admitted using cocaine in December 2020. A drug test indicated cocaine use in September 2021, but he said that result was due to accidental contact. He had also interfered with hair follicle testing from March to May of 2021 by dying and cutting his hair. The custody evaluator’s report indicated he had a history of “sexually addictive behaviors. The father admitted he was still associating with friends with whom he used drugs and alcohol.
The husband argued he had not had a positive drug test in more than eight months; he completed an intensive outpatient program for chemical dependency; and a licensed clinical social worker and chemical dependency counselor who conducted an alcohol assessment opined he could “continue with casual moderate social use of alcohol. . .”
The appeals court determined this evidence was not sufficient to show the conditions imposed by the trial court were arbitrary and unreasonable and found no abuse of discretion in the conditions imposed by the trial court.
Step-Up Possession Schedule
The father also challenged the fifth and final phase of the step-up possession schedule, which required at least 12 months of clean drug and alcohol testing and meaningful progress in certain treatment programs. The appeals court did not find any abuse of discretion in these requirements, nothing they were based on recommendations from the custody evaluation expert and the co-parenting therapist.
The appeals court also found no abuse of discretion in the appointment of a case manager to monitor the father’s progress, including confirming his participation in Alcoholic Anonymous, his attendance at psychotherapy appointments as recommended, his treatment with a therapist specializing in sex addiction, and his psychotherapy with a professional trained in dual diagnosis of substance abuse and mood disorder. The appeals court concluded the requirements were not arbitrary or unreasonable based on the evidence.
Morality Clause
The father also challenged the morality clause, which he identified as “overly restrictive.” The morality clause prohibited either party from introducing or having “the children in the presence of a romantic partner or anyone they are in or have been in a sexual relationship with.” The clause prohibited both parties from introducing children to a romantic partner until they had been dating for at least six months. Additionally, neither party was allowed to have a romantic partner spend the night while they were in possession of the children until they were married and had met the six-month timeframe. The father argued these restrictions exceeded what was required to protect the children’s best interest.
The appeals court noted the trial court has broad discretion to impose restrictions on possession and access in the children’s best interest, including to limit the parent’s sexual activities while they have the children.
The mother testified about the father’s history of multiple romantic partners and “swinging” lifestyle. She said he started dating two weeks after they separated and had multiple partners since. She said he was still associating “with the same drug and swinger friends.” The father told the custody evaluator he was a swinger. The parties both acknowledged having a “threesome” with a friend several times. In her evaluation, the custody evaluator recommended the parents not “further confuse these very young children by introducing any other adults into their lives.”
The appeals court acknowledged the morality clause was strict, but did not conclude it was an abuse of discretion. It did not limit the parties’ relationships, but limited what contact other people could have with the children. The appeals court also concluded the morality clause was not indefinite as the father argued, but instead let the parties introduce a romantic partner to the children after six months and allowed them to spend the night after the six-month requirement was met and the party was married to the new partner. The appeals court also noted that application to both parents strongly weighed against a finding it was an abuse of discretion. The appeals court could not conclude the limitations on contact between the children and the parents’ romantic partners were arbitrary or unreasonable based on the evidence.
The appeals court affirmed the divorce decree.
Call McClure Law Group
Drug and alcohol issues can complicate custody cases. There may be contentious issues around restrictions or conditions on custody and access of the children. If you are facing a divorce or custody dispute where addiction or substance use may be an issue, an experienced Texas custody lawyer can help. Contact McClure Law Group at 214.692.8200 or online to set up a consultation.