When a parent wants to modify a Texas custody order, they generally must show that the change is in the child’s best interest and that there has been a material and substantial change in circumstances since the prior order. Whether a material and substantial change has occurred is fact-specific and varies depending on the circumstances of the case. Recently, a father successfully argued that false allegations of sexual abuse and the resulting investigations constituted a material and substantial change in circumstances justifying a custody modification.
The father petitioned to modify the Order in Suit Affecting the Parent-Child Relationship to give him the exclusive right to designate the child’s primary residence. The previous order gave the mother that right and included a modified standard possession order until the child turned five, at which time the father would begin a standard possession order.
The mother expressed concerns the child may have been sexually abused during the first extended summer visitation with the father under the standard possession order. The father let the child go back to the mother’s home for a weekend because she was homesick. The mother saw bruises on the child’s inner thigh and pubic bone and the child had a urinary tract infection. The mother took the child to a clinic and then for an examination by a sexual assault nurse examiner (“SANE”). She also took her for a forensic interview at the child Advocacy Center.
Child Protective Services investigated and ultimately ruled out improper conduct by either the father or his son. The sheriff’s department also investigated. The father did not get visitation for several weeks.
The mother testified the child was not upset after the examination. She further testified she had “never accused” the father of abusing the child.
The father testified he was seeking custody because of the false sexual assault allegation. He also testified that the mother frequently moved and allowed a boyfriend to sleep over in the child’s presence. He argued these were also changed circumstances that justified a modification. He also presented evidence that the police had been called multiple times regarding disputes between the mother and her boyfriend.
The trial court granted the father’s petition following a jury trial, and the mother appealed. The mother argued there was insufficient evidence of a material and substantial change of circumstances to support the modification. She argued the evidence was insufficient because there was no evidence about the technical details of the SANE examination. The appeals court noted, however, that the father had not based his argument on the technical details of the examination, but instead on the fact of the false accusation and subsequent investigations. The appeals court also noted that there was conflicting evidence regarding the examination’s effect on the child, and it was up to the jury to resolve that conflict.
Texas case law has held that an attempt to impair the child’s relationship with the other parent can be a substantial and material change supporting a custody modification. The mother denied accusing the father or his son, but the physician’s assistant at the clinic noted she ordered the SANE examination because of the mother’s concern “the child may have been touched inappropriately.” The father had also testified law enforcement told him the mother accused him of inappropriate conduct. The appeals court found the mother’s basis and motivation for the accusation were questions for the jury. The appeals court also found that there was legally and factually sufficient evidence of a material and substantial change to justify the modification. The appeals court affirmed the trial court’s order.
This case shows that false allegations may be sufficient to support a custody modification. If you are seeking or opposing a modification, a skilled Texas custody attorney can help you. Contact McClure Law Group at 214.692.8200 to set up a consultation.