Kelly McClure, Author at Texas Divorce Attorney Blog

Divorce Involving Eight Kids and Domestic Violence Allegations

Published on: January 22, 2018 | by Kelly McClure

In a recent Texas domestic violence decision, the plaintiff appealed from the lower court’s judgment granting his divorce petition. The couple had married in 1999 and had eight kids. After 15 years of marriage, the husband sued for divorce.

At the divorce trial, the primary issue was who should have conservatorship of the eight kids. The parents and a counselor who prepared a social study testified. The father argued there was credible evidence showing that the mother had a history of past or present physical abuse against him and that the lower court was prevented from appointing him and the mother as joint managing conservators. The father also argued the lower court should appoint him sole managing conservator. Alternatively, he argued the lower court should appoint him joint managing conservator with exclusive right to determine their primary residence.

The mother argued that the lower court wasn’t prevented from appointing her and the father as joint managing conservators. The mother also argued that the lower court should appoint her the joint managing conservator with exclusive right to decide the primary residence.

Right to Designate Residence of Texas Child

Published on: January 16, 2018 | by Kelly McClure

In a recent Texas child custody decision, the court considered a situation in which the mother was given the exclusive right to designate the daughter’s primary residence within Tarrant County, Collin County, or a contiguous county to the latter. In a modification order, the court gave the father the exclusive right to designate her primary residence within Dallas County or a contiguous county.

The child was born to a married couple in 2008, and they later divorced. The father asked the court to modify the parent-child relationship. The judge issued a memorandum on the same day as the trial but didn’t sign a written order for about a month. The order granted the father’s requested remedy by providing that the daughter’s residence could be established in Tarrant County, Collin County, or a contiguous county to the latter and setting an expanded standard possession order.

The mother appealed this order. Subsequently, the father tried to enforce the order. He claimed the mother hadn’t established their daughter’s home in the appropriate county and inappropriately kept him from the daughter on 17 occasions. At the enforcement hearing, the mother and father told the court they’d come to an agreement. They had agreed the parents would stay joint managing conservators, with the father having exclusive rights to designate the daughter’s primary residence within Dallas or a county contiguous to it. The mother was going to get standard visitation for parents whose own homes are 100 miles from their child’s.

Father’s Motion for New Trial Denied in Texas

Published on: December 26, 2017 | by Kelly McClure

In a Texas child support decision, a father’s attorney told the trial court the couple had reached an agreement about everything but the father’s child support obligation. His attorney told the court what the terms of their agreement were. These included that the mother would decide the kids’ primary residence, and the father would have standard possession with certain modifications. After deciding the amount of the child support payment, the lower court announced it approved their agreement.

The lower court entered a divorce decree, including the terms that had been announced on the record. The decree had a place for the father to sign indicating consent, but he didn’t sign. He asked for a new trial without an attorney, and when that motion was denied, he appealed without an attorney. He presented five issues.

He argued that the mother had instituted a malicious criminal prosecution against him that adversely affected his negotiations during divorce. He claimed there was newly discovered evidence in the form of his cell phone, which had been in the district attorney’s custody previously as proof in an ongoing criminal investigation.

Termination of Parental Rights in Texas for Placing a Child in an Endangering Environment

Published on: December 2, 2017 | by Kelly McClure

In a recent Texas child custody case, the Texas Department of Family and Protective Services sued to terminate a mother’s parental rights to her daughter. After the jury trial, her parental rights were terminated.

The lower court found that the mother had placed or permitted her child to stay in surroundings that threatened the child’s wellbeing. It also found she’d put the child with people who were involved in activities that were endangering the child. It also found that she’d failed to obey a service plan that set forth actions she had to complete in order to have her child returned, and terminating her rights was in the child’s best interest under Texas Family Code section 161.001(b)(1)(D), (E), and (O).

The mother had two kids, a son and a daughter from different fathers. The son was around 11 years old at the time of trial, while the daughter was 16 months old. While the mother was pregnant with her daughter, the Department got a report that claimed there was domestic violence in her home.

Stepmother Petitions to Modify Parent-Child Relationship in Texas

Published on: November 8, 2017 | by Kelly McClure

A Texas child custody case arose after a mother asked the court to grant her plea to the jurisdiction and request for dismissal of a petition to modify the parent-child relationship, which was filed by her children’s stepmother.

The mother and father in the case had divorced in 2011. The court appointed them joint managing conservators of their three kids. The kids lived with the mother, who had the right to choose their primary residence. They spent one night a week and every other weekend with their father. They had dinner with him on a different night once a week.

Two years later, the father was diagnosed with cancer, and the parents modified their child custody order, reducing the father’s child support and life insurance obligations, and adding an overnight on the night the kids ate dinner with him. The former couple agreed that if either parent became incapacitated or died, the kids would continue to have reasonable contact with their extended family on the other side.

Wife Unable to Overcome Community Property Presumption in Texas

Published on: November 2, 2017 | by Kelly McClure

In a recent Texas property division decision, a woman appealed from a final divorce decree. A couple had been married about 30 years when the husband petitioned for divorce. The wife was incarcerated. At a divorce hearing, she appeared without a lawyer and by telephone because of her incarceration. The lower court gave her 15 days to file exhibits and permitted the husband another 15 days to object. The wife sent copies of her exhibits and also sent a settlement offer to the husband’s attorney. There were no objections to the copy she filed with the court, or any of her exhibits submitted to the court.

Her divorce was granted, and the community real property and other assets were ordered to be sold with the proceeds split between the husband and the wife equally. The wife appealed, complaining of mistakes about how the property was divided.

The appellate court explained that the court can divide the community estate during a divorce under Texas Family Code section 7.001. It cannot divide separate property. The appellate court that reviews property distribution is supposed to look at whether there was enough evidence upon which the lower court could exercise discretion, and whether the lower court erred in applying its discretion.

Deviation from Standard Possession Order in Texas

Published on: October 2, 2017 | by Kelly McClure

It is crucial to retain an experienced Texas child custody attorney and obtain a clear record at the lower court level. In a recent Texas appellate decision, a mother appealed from a court’s decision in a lawsuit to modify the parent-child relationship. She argued that she and the father shouldn’t have been named joint managing conservators with her access being supervised. She also argued that the access the trial court gave was below the minimum access established by the Family Code’s standard possession order. She further argued that evidence wasn’t identified.

The case arose when a child’s parents divorced in 2011. The court appointed the parents as joint managing conservators. The mother had the right to decide the primary residence of the child, while the father simply had the right to visit. Three years later, the father petitioned for a modification, wanting the exclusive right to decide the child’s primary residence. He asked the court to deny the mother access or that her visits be supervised on the grounds that she physically abused the child, smoked and drank too much around the child, and moved around the city and had pulled the child out of school multiple times. The father also claimed the child was terrified of the mother’s new husband.

The lower court granted the father’s request. The mother appealed. She didn’t file a reporter’s record or follow the proper procedure, but she presumed the proof submitted supported the order. The appellate court explained that the child’s best interest is the lower court’s main consideration when deciding conservatorship under Tex. Fam. Code Ann. § 153.002. The lower court can modify possession or access only when it’s in the child’s best interests, and the child’s circumstances have materially and substantially changed.

Family Violence Exception and Texas Mediated Settlement Agreements

Published on: October 1, 2017 | by Kelly McClure

In a recent Texas child support case, a mother appealed after the trial court enforced a mediated settlement agreement. She argued it was an error to enforce it because: (1) it included a child support provision that violated public policy, (2) the mother took back her consent before it was approved, and (3) she wasn’t allowed to give evidence to bolster her family violence exception argument.

The case arose several years after a divorce. The parents mediated the matter and signed an irrevocable mediated settlement agreement, in which they agreed to different terms related to child support. The mediated settlement agreement included a provision under which there would be a limited standstill period, during which nobody would ask for child support increases.

The couple had signed the agreement and filed it. The agreement stated that it was meant to be a full and final settlement and that the parents had voluntarily signed it.

Texas Child Support Modification Deviates from Statutory Guidelines

Published on: September 30, 2017 | by Kelly McClure

In a recent Texas appellate case, the lower court’s SAPCR order granting a child support modification for the mother was appealed by the father. The father argued the trial court shouldn’t have set the periodic child support obligation to be more than the statutory child support guidelines provided and found a material and substantial change in circumstances affecting either the parents or the kids that would warrant a modification.

The mother and father got divorced in 2013 after coming to a mediated settlement agreement. They were named joint managing conservators of their kids. The father was allowed to have possession for certain periods, and he had to pay the mother monthly child support until they reached 18 years old. There were two kids.

The father sought relief regarding one of the kids when she turned 18. However, he didn’t pursue it at the time of trial. The mother counter-petitioned, asking to modify the parent-child relationship and asking for child support that exceeded the statutory guideline for the other child.

Gift Given Before Texas Marriage

Published on: September 29, 2017 | by Kelly McClure

In a recent Texas property division decision, an ex-husband tried to reverse a property distribution order issued as part of a divorce. The couple married in 2012, after the husband had bought a tractor and multiple attachments from a dealership. The husband had signed a five-year note to finance a portion of the purchase price of the equipment. The couple separated in 2014 when the wife sued him for divorce.

They both claimed that they owned certain items of property before marrying and that these should be considered separate property. The husband took issue with the court’s treatment of the tractor he’d bought, as well as the characterization of his bonus, received in May 2014 as community property. He argued that he earned the bonus based on a project that started before his marriage.

At trial, the wife gave the court an inventory of community property and her separate property. She listed the tractor as an asset over which she and her husband had a dispute. She said that the husband gave her the tractor as a gift before they married. Documents showed he’d bought the tractor close to a year before marriage, and he made all of the monthly payments since the sale.