Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Vacates Judgment Giving Grandmother Possession and Access to Grandchildren

Published on: March 7, 2025 | by Kelly McClure

A party must establish standing to maintain a lawsuit. If the party does not have standing, the court does not have subject-matter jurisdiction. The parties cannot waive subject matter jurisdiction. The Texas Family Code sets forth when a non-parent has standing to pursue access or pursue to a child. A non-parent seeking access or possession of a child must establish standing pursuant to the requirements set forth in the applicable statute.

Chapter 153 of the Texas Family Code sets forth when a grandparent has standing to pursue a claim for access or possession. Pursuant to § 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denying them possession or access “would significantly impair the child’s physical health or emotional well-being” and state supporting facts. The court then determines if the facts would be sufficient to support possession or access under § 153.433 if true. The court may order possession or access under § 153.433 if at least one parent’s rights have not been terminated, the grandparent proves denying possession or access would significantly impair the child’s health or well-being by a preponderance of the evidence, and the grandparent’s child has been incarcerated for the three months before the petition, is incompetent, is deceased, or does not have possession or access to the child. In a recent case, a father and maternal grandmother each appealed a court order granting the grandmother possession and access.

Grandmother’s Petition

In December 2021, the grandmother petitioned for possession or access to her grandchildren. The father filed a counterpetition, asking for a judgment naming him sole managing conservator. In February 2022, the court rendered temporary orders naming the grandmother a “nonparent” possessory conservator with standard possession.

The trial court granted the grandmother possessory conservatorship after a trial. On the father’s motion, the trial court modified the judgment to remove the grandmother’s designation as “conservator,” but still granting her possession and access.

Independent Medical Decision-Making in Texas Custody Case Involving Child with Special Needs

Published on: February 25, 2025 | by Kelly McClure

In some Texas custody cases, parents may not agree on the best medical treatment for a child, especially a child with complex special needs. Courts sometimes give each parent the authority to make decisions regarding medical treatment during their periods of possession, but this can become complicated when the parents cannot agree on appropriate treatment. In a recent case, a father appealed a divorce decree that allowed each parent to make decisions regarding non-invasive treatment during their respective periods of possession.

Medical Decision Making

The parties’ divorce decree gave the mother the exclusive right to enroll their younger child in school and gave both parents the authority to consent to non-invasive medical treatment during their possession. The father appealed these two issues. Although the parties had two children, only the younger child was subject to the appeal.

The father argued that allowing each parent the right to decide whether to administer medication to the child during their possession was not in the child’s best interest.

Texas Appeals Court Affirms International Travel Restrictions for Child in Divorce Decree

Published on: February 14, 2025 | by Kelly McClure

The Fourteenth Court of Appeals recently reversed a trial court’s order imposing restrictions on international travel for a child whose mother had ties to Russia. In another recent case, however, the Third District Court of Appeals determined there was no error in a trial court’s imposition of travel restrictions for a child in a Texas divorce decree involving a mother with ties to India.

The parties’ son was nine years old when the final divorce decree was signed in 2023. The trial court ordered that the father maintain control and possession of the son’s passport until the child turns 13. The court also prohibited either party from traveling outside the U.S. with the child without the written agreement of the parties, with such agreement not being unreasonably withheld after the child turns 13.

The mother appealed, arguing the trial court abused its discretion in restricting international travel without evidence of a risk of abduction.

Modification of Texas Child Custody and Child’s Preference

Published on: January 30, 2025 | by Kelly McClure

A trial court may modify a Texas conservatorship if modification is in the child’s best interest and the child is at least 12 years old and has told the court in chambers which parent they prefer to have the exclusive right to designate their primary residence. Tex . Fam . Code § 156.101(a)(2). In a recent case, a mother challenged a modification that named the father primary managing conservator, in part based on the fourteen-year-old daughter’s preference.

The 2017 final divorce decree appointed both parents joint managing conservators of their child. The mother had the exclusive right to designate the child’s primary residence. The father was given an expanded standard visitation schedule and ordered to pay monthly child support.

Modification Proceeding

The father petitioned for modification in March 2021, requesting the exclusive right to designate the child’s primary residence. He argued there had been a material and substantial change in circumstances. He alleged the child, who was now older than twelve years old, would express a preference on which parent should have the exclusive right to designate her primary residence.

Texas Appeals Court Concludes Company Was Husband’s Separate Property

Published on: January 20, 2025 | by Kelly McClure

Division of a business in a Texas divorce can complicate a Texas divorce. As with other property, a business interest possessed during the marriage is presumed to be community property, but that presumption can be rebutted by clear and convincing evidence that it is separate property. In a recent case, a husband appealed a property division involving a business interest and property owned by the business.

The trial court signed a final divorce decree in July 2023 and subsequently filed findings of fact and conclusions of law.

The property at issue was a 125-acre tract of land that the husband’s father previously owned. The trial court found the husband and his father each received 50 shares of company stock on the day the company was created in May 2008. A few days later, the husband’s father deeded the property to the company. The parties got married in June 2009.

Texas Appeals Court Affirms Spousal Maintenance Award to Disabled Spouse

Published on: January 6, 2025 | by Kelly McClure

A court may award Texas spousal maintenance in a divorce case if the spouse seeking maintenance meets the statutory requirements. Generally, a spouse seeking maintenance must show that they lack sufficient property to provide for their own minimum reasonable needs and meet one of the other statutory conditions, including being unable to earn sufficient income due to an incapacitating disability. Tex. Fam. Code § 8.051.

“Minimum reasonable needs” is not defined in the Texas Family Code. The court therefore has the discretion to determine a party’s minimum reasonable needs based on the facts and circumstances of the case. Courts consider expenses including housing, clothing, and transportation. A former husband recently challenged the divorce decree that ordered him to pay spousal maintenance, arguing the wife had not proven her minimum reasonable needs.

The parties got married in Australia in 2009 and subsequently moved to Texas. Although the husband had a high-paying job, the wife only earned up to $10.50 per hour. She had significant mental and physical health issues that resulted in her unemployment in 2017.

Texas Court Denies Petition to Enforce Provisions of 1993 Divorce Decree in High Net Worth Divorce

Published on: January 6, 2025 | by Kelly McClure

The conflict in a Texas divorce does not always end when the divorce is finalized, especially a high net worth divorce or one that involves complex assets. A Texas appeals court recently considered an appeal of a denial of a petition to enforce certain property division provisions from a divorce decree from 1993. The ex-husband was deceased when the petition for enforcement was filed, so his widow, as heir to the property, was the real party in interest in the proceedings.

Divorce Decree

The divorce decree incorporated and adopted a “Property Statement and Settlement,” an agreement between the ex-husband and ex-wife addressing the division of assets and liabilities. The decree awarded the ex-husband a particular property in Williamson Count as his sole and separate property. It provided that the ex-wife was divested of any right and title in the homestead. The ex-husband would be solely responsible for all liabilities and benefits associated with the dwelling. The decree further provided that if the husband failed to make the monthly mortgage payments, the house and/or property would be sold. “In the event of sale of said dwelling and/or acreage,” the wife would be entitled to ½ of the net profit. The ex-wife was not to be held liable for any mortgage payments, taxes, or other expenses related to the property.

The decree awarded the ex-wife 100% of the proceeds from the sale of a different property, as well as all benefits associated with it. The decree also awarded her a vehicle, jewelry, a savings account, and a checking account. All debt was awarded to the ex-husband.

Texas Appeals Court Considers Spouse’s Relationship to Child Following Same-Sex Divorce Case

Published on: December 14, 2024 | by Kelly McClure

Texas divorces of same-sex couples can involve unique legal issues. Recently, a Texas appeals court considered three related cases involving one spouse’s relationship to a child born during the marriage.

According to the appeals court, the parties, A. and J., signed an agreement with a reproductive services agency during the marriage. A. gave birth to R.G.S. following a reproductive procedure using donor sperm. When A. filed for divorce in 2020, she identified R.G.S. as a child born of the marriage.

The parties entered into a Mediated Settlement Agreement (“MSA”), pursuant to which J. was to be adjudicated a parent of the child. The court asked the parties’ attorneys to brief on the issue of whether the court could “adjudicate a second mom.”

Characterization of Gifted Property in a Texas Divorce

Published on: November 30, 2024 | by Kelly McClure

When individuals with a high net worth marry, they often bring significant separate assets to the marriage. When marriages with complex estates end, there may be disputes over whether property is community property or the separate property of one of the spouses. The trial court in a divorce must divide the community estate of the parties in a just and right manner. The trial court generally may not divest a spouse of their separate property by awarding it in whole or in part to the other spouse. Community property is the property, other than separate property, acquired by either spouse during the marriage. Tex. Fam. Code § 3.002. Separate property includes property the spouse owned before the marriage and property gifted, devised, or descended to the spouse during the marriage. Tex. Fam. Code § 3.001. Texas law has a rebuttable presumption that property possessed by either spouse at the time of the divorce is community property. Tex. Fam. Code § 3.003. The spouse claiming property is separate has the burden of proving the property’s character by clear and convincing evidence. In a recent case, a husband appealed a property division he claimed improperly divested him of his separate property.

The Property

The parties got married in 2008. The wife petitioned for divorce in 2021 and subsequently amended her complaint to allege adultery. The primary issue at trial was the characterization of a particular piece of real property.

According to the appeals court’s opinion, the husband’s parents gave him a tract of land in 1995. The wife testified it was her understanding the husband’s parents had given the property to him as a gift in 1995. The husband testified that he had a house moved onto the land the same year.

Texas Appeals Court Affirms Confirmation of Arbitration Award in High Asset Divorce

Published on: November 21, 2024 | by Kelly McClure

Parties to a high net worth Texas divorce may choose to arbitrate disputes because arbitration can be less expensive, less contentious, and more private than litigation. An arbitration award can be difficult to challenge, however. Under the Texas Arbitration Act, a trial court may only vacate an arbitration award based on one of the grounds listed, including the arbitrator exceeding his authority. Tex. Civ. Prac. & Rem. Code Ann. § 171.088. The arbitrator’s power is based on the arbitration agreement between the parties. In Texas, arbitration awards are presumed to be valid. When a party seeks to vacate an arbitration award, they have the burden of establishing the grounds based on the complete record. An appeals court presumes there was sufficient evidence to support the arbitration award if there is not a transcript of the arbitration hearing. A Texas appeals court recently considered a wife’s challenge to an arbitration award addressing the division of certain disputed personal property after the parties reached a mediated settlement agreement as to the property division.

The parties entered into a mediated settlement agreement (“MSA”) and memorialized it in an agreement incident to divorce (“AID”). Pursuant to the AID, the wife would receive $17 million in cash, in addition to multiple pieces of real property, vehicles, and multiple accounts. The parties were to agree in writing to the division of personal property from two of their homes and submit any items they could not agree on to arbitration. The court incorporated the AID into the final divorce decree.

Arbitration Proceedings

They later signed a binding arbitration agreement to address the disputed personal property from the two homes. Pursuant to the arbitration agreement, each party would be allowed to present a position statement orally in writing. The wife submitted a list of disputed personal property she sought to be awarded to her, including some items that were to go to her pursuant to the AID.