Texas Divorce Attorney Blog
There is a strong presumption in Texas family law that it is in the child’s best interest for a parent to be awarded custody over a non-parent. In a recent case, a father appealed a judgment naming him joint managing conservator with the child’s maternal grandmother. A central issue in the case was the father’s argument that he should have been appointed the child’s sole managing conservator based upon the parental presumption.
Evidence of Adultery and Drug Use in a Texas Custody Case
Evidence is important in any case, including a Texas child-custody dispute. In a recent case, a father challenged a trial court’s divorce decree based on the exclusion of certain evidence at trial.
Texas Appeals Court Finds No Judicial Admission in Conditional Pleading for Custody Modification
Generally, there must be a material and substantial change in circumstances to justify a modification of a Texas custody order. An appeals court recently considered whether a father judicially admitted the existence of a material and substantial change when he objected to the modification sought by the mother, but petitioned, in the alternative, for different modifications.
Texas Court Has Jurisdiction Over North Carolina Child-Custody Order
Sometimes one or both parents move after a custody order is issued. When parents move, they often want to modify custody and visitation. However, if both parents have moved out of state, issues of jurisdiction may arise. In a recent case, a father sought a Texas custody modification of a North Carolina custody order.
Texas Court Should Have Applied Parental Presumption Even When Parent Lived Outside U.S.
Texas family law has a strong presumption that it is in the child’s best interest to give custody to a parent. Generally, the court must appoint sole managing conservatorship to the parent instead of a non-parent unless it finds doing so would not be in the child’s best interest due to significant impairment of the child’s emotional development or physical health. Tex. Fam. Code § 153.131(a). What if the parent lives in another country? A Texas appeals court recently considered this issue.
Texas Court Finds No Duress in Mediated Settlement Agreement
What is a Mediated Settlement Agreement?
A mediated settlement agreement (“MSA”) in a Texas divorce is binding if it meets certain requirements. It must state that it is not subject to revocation in bold letters, capital letters or underlined text. It must also be signed by each party and the party’s attorney, if present. Tex. Fam. Code Ann. § 6.602. Some Texas courts have held that an MSA may be unenforceable if it is obtained by fraud, duress or coercion.
A husband recently challenged an MSA, partly on the grounds that he allegedly signed it under duress.
The parties had been married since 1981. Some of the property acquired during the marriage was held by a limited partnership in which the parties owned a 95% interest. In August 2017, the husband was arrested after the wife reported he had threatened her with a firearm. The wife filed for divorce the very next day.
Texas Court Awarded Guardianship to Aunt Instead of Grandmother
T
exas custody disputes usually involve the children’s parents. When both parents unexpectedly pass away, however, their families may fight over who gets guardianship of the children. Generally, if the parents did not designate a guardian, a grandparent would be awarded guardianship. If multiple grandparents seek guardianship, then the court will appoint one of them, considering the circumstances and child’s best interest. If no grandparent seeks guardianship, then the court will appoint the next of kin, considering the circumstances and the child’s best interests if there are multiple people with the same degree of kinship. Tex. Est. Code Ann. § 1104.052. A minor who is at least 12 years old may be able to select a guardian, if the court finds the selection is in the child’s best interest and approves. Tex. Est. Code Ann. § 1104.054.
False Allegations May Justify Texas Custody Modification
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.
Appeals Court Reverses Finding of Business Partnership in Texas Divorce Case
Long term relationships that involve joint business dealings prior to marriage can lead to complicated divorces. In a recent case, a wife challenged a trial court’s finding that she and her husband had formed a business partnership in 1995 and that properties purchased in her name belonged to the partnership.
The wife filed for divorce, alleging the parties married in 2009. The husband alleged the parties had been informally married since 1984. He also alleged, in the alternative, that they had entered into a farming and ranching business partnership in 1995.
The parties began a romantic relationship in 1984. In 1995, the wife bought a property in her name and made all related payments. The husband moved into the property to work on the house. The wife also worked on the house on weekends.
Threats of Criminal Prosecution Can Constitute Duress in Texas Divorce Case
Divorce is usually fraught with emotion, but in some cases, a party may be pressured to the point of duress. Duress exists when there have been threats that prevent a person from exercising their own free will. Although it is not duress when a person threatens something they have a legal right to do, duress may exist if they exhort or make improper demands of another person. An agreement signed under duress may be void. In a recent Texas divorce case, a husband alleged he was under duress when he signed the marital home over to the wife.
The parties married in 1994. During the marriage, they purchased the home. They separated in March 2017. They agreed the wife would take the home and the husband would not have to pay child support, but they never memorialized the agreement. The husband testified he changed his mind after finding out his wife was unfaithful.
The husband moved out in March 2017. The wife also filed her divorce petition that month. She testified that the husband came to the house in April, kicked in the door, and threatened to kill her, her boyfriend, and her grandmother. She reported the incident to the police.