Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Affirms Order Naming Stepfather as Child’s Joint Managing Conservator

Published on: December 25, 2019 | by Kelly McClure

Texas child custody law includes a presumption that a parent will be appointed sole managing conservator or both parents will be joint managing conservators of their children unless a court finds that doing so would significantly impair the health or emotional development of the children. Although it can be difficult for a third party to get custody of a child, it does occur in some cases. Grandparents and stepparents, in particular, can play significant roles in children’s lives and may want custody. A father recently challenged an order appointing him, the mother, and the stepfather as joint managing conservators of the child.

The father argued that the stepfather had not rebutted the parental presumption. He argued that the stepfather had to rebut the parental presumption in Tex. Fam. Code Ann. § 153.131(a) to succeed in his petition to modify the prior order. The appeals court found, however, that the statute and the presumption contained therein only apply to original custody proceedings. The order at issue was not the original order, but it was instead a modification of the prior order. The presumption was therefore not applicable, and the stepfather did not have to rebut it at this stage.

The father also argued that the stepfather did not have standing to petition for a modification. The father argued that Tex. Fam. Code Ann. § 102.004 applied. Under this statute, a grandparent or another relative may file suit seeking custody if the child’s current circumstances would significantly impair his or her health or emotional development, or if the suit is filed or consented to by the parents or the managing conservator.

Texas Divorce Court May Clarify Latent Ambiguity in Divorce Decree

Published on: November 27, 2019 | by Kelly McClure

Parties sometimes realize they have different understandings of a Texas divorce decree. The trial court may issue a clarifying order if the decree is ambiguous. In some cases, the decree may be facially unambiguous, but have a latent ambiguity when read in context of the surrounding circumstances. In a recent case, a husband challenged a clarification order.

The final divorce decree included a provision setting forth the amount of his bonuses the husband would pay to the wife. It further provided he would provide her a 1099 tax statement for each payment if allowed by his employer. If he could not provide the 1099, “then the payments made to [the wife would] be the amounts above net of taxes paid in [his] tax bracket.”

The wife later petitioned for enforcement, arguing the husband was not dividing the bonuses “net of taxes paid in [his] bracket,” but was instead dividing them after the tax withholding by his employer. She requested a clarifying order if the court found the decree was not specific enough to enforce by contempt.

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Published on: November 6, 2019 | by Kelly McClure

The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders. Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services. The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him. The father was ordered to pay child support beginning in December 1996. The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers. The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Published on: October 16, 2019 | by Kelly McClure

The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources. The statute sets forth what types of income are included and excluded from the parent’s net monthly resources. In many families, it is fairly straight-forward to determine what is included in the calculation. If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources. Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation. Prior to the marriage, the father settled a claim for a work-related accident with his employer. As a result of the settlement, the father receives $6,970 per month from an annuity. The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage. The mother filed for divorce less than a year after the couple was married. Although the couple reached agreement on some issues, they were unable to agree on child support and medical support. The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

Father’s Disability Following Stroke Leads to Modification of His Texas Child Support Obligation

Published on: September 25, 2019 | by Kelly McClure

Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation. If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.

In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled. The original support order was entered in 2006. The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.

Soon after the 2012 order was entered, the father had a stroke. The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits. He moved to modify the support order on the grounds his circumstances had materially and substantially changed.

Jurisdiction in Texas Divorce

Published on: September 4, 2019 | by Kelly McClure

In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue. In other cases, however, one parent has moved away and there may be a dispute over jurisdiction. Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody. The family lived in South Carolina when the child was born, but moved to Texas a few months later. They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then. They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas. He sought the exclusive right to designate the child’s primary residence. The Texas court entered temporary orders. The father added a divorce petition.

Texas Court Awards Custody to Stepfather

Published on: August 14, 2019 | by Kelly McClure

It can be very difficult for a non-parent to get custody of a child in Texas custody cases. A presumptive father may, however, have an advantage over other non-parents. In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”

Award of Retirement Increases in Texas Divorce

Published on: July 24, 2019 | by Kelly McClure

Retirement can be a complex issue in Texas divorce cases. In some cases, retirement accounts may not be fully vested. In others, retirement income may be subject to periodic increases. When retirement income is subject to increases, the spouse required to make ongoing payments should be sure he or she understands how to calculate those payments in light of the increases.

A former couple recently ended up back in court more than a decade after their divorce due to a dispute over how to calculate retirement increases. The couple married in 1976 and divorced in 1998, after the husband’s retirement from the military. The wife was awarded $754.80 per month of the husband’s retirement, and 60% of all increases “due to cost of living or other reasons…” The husband was ordered to name the wife beneficiary under the Armed Services Survivor Benefit Plan (SBP). The wife was ordered to pay 40% of the cost of the SBP, which was to offset the retirement award the wife received.

In 2012, the wife informed the husband he had underpaid her. His new attorney told him he had been calculating his payments incorrectly. He had been calculating the payment using a method that resulted in payment of 60% of all cost of living increases cumulatively. After receiving advice from counsel, he began paying his wife 60% of the increases only in the first year they were received.

Stepparent’s Rights in Texas

Published on: July 3, 2019 | by Kelly McClure

Stepparents often develop strong bonds with their stepchildren. It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child. Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed. Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed. Unfortunately, this section only applies if the parent to whom the stepparent was married dies. It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living. In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above. This section is not dependent upon the biological parent being deceased. Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.” As with the other section, the six-month period must end within 90 days before the filing.

Divorcing While Pregnant in Texas

Published on: July 3, 2019 | by Kelly McClure

Courts will not generally grant a Texas divorce during the pregnancy of a spouse. Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce. Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence. The paperwork can be filed and the process initiated during the pregnancy. The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree. If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways. First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father. This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father. Otherwise, the presumption may only be rebutted by an adjudication of paternity.