Texas Appeals Court Upholds Custody Modification Following Alleged Assault and Abuse

A Texas custody order may only be modified in certain circumstances.  The parents may agree to change the order.  The court may order modification if the child is at least twelve years old and wants to change which parent has primary custody. Otherwise, the parent seeking the modification must generally show that there has been a material and substantial change in the circumstances of the child or a parent since the current order was rendered.  The court must consider the facts and circumstances of the specific case to determine if there has been a material and substantial change in circumstances.  Common situations that may lead to a material and substantial change in circumstances include marriage, a change in employment, or relocation of a parent’s primary residence.  Courts have also recognized changes related to the relationship between the parent and child, including abuse, mistreatment, or “poisoning the child’s mind.”  In all cases, the modification must be in the child’s best interest.

Mother and Father Agree to Custody Modification

In a recent case, a father challenged a modification sought by the mother. According to the appeals court’s opinion, the parents divorced in 2012 and entered into an agreed order to modify custody in 2016.  Pursuant to the 2016 modification, the mother was given the right to determine the children’s residence within a specified geographic restriction.  The father was awarded custody beyond the standard order.  The agreed order did not require either parent to pay child support.

After one of the children broke an arm, the mother moved to modify that order and the court entered the modification in 2018.  The new order required the father to pay child support and changed his custody schedule.  He appealed.

The children’s counselor had testified at the trial.  The father argued the counselor was not qualified as required by Tex. Fam. Code Ann. § 107.104.  This statute sets forth the qualifications required for a person to “conduct a child custody evaluation. . .” The appeals court found the statute applies only to court-appointed counselors performing a custody evaluation.  The counselor was not court-appointed and therefore not subject to the statutory qualifications.  Her qualifications were a credibility consideration, and the appeals court deferred to the trial court on issues of credibility.

Assault Constituted “Material and Substantial Change in Circumstances”

The father then argued that there had not been a material and substantial change in circumstances to support a modification.  One of the children had broken an arm shortly before the mother moved for the modification. According to testimony, the parents had an altercation at the hospital resulting in the father being cited for assault.  The mother testified she had a miscarriage after the assault. The counselor testified the children reported abuse by the father.  The counselor and the mother testified the father started disparaging the mother to the children. Based on this evidence, the appeals court found there had been a material and substantial change in circumstances that supported the modification.

The appeals court affirmed the trial court’s judgment.

If You Are Seeking a Modification, Call McClure Law Group Today

As this case shows, assault and abuse may constitute a material and substantial change to support a custody modification.  If your child’s other parent has engaged in assault or abusive behavior, a skilled Texas custody modification attorney can help you.  Schedule a consultation with McClure Law Group by calling 214.692.8200.