Kelly McClure, Author at Texas Divorce Attorney Blog

Fit Parent Presumption in Texas Custody Modification Proceedings

Published on: May 10, 2023 | by Kelly McClure

iStock-170042608-300x200 There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents. Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Courts generally cannot interfere with these fundamental rights of a fit parent. The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence. He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

Texas Appeals Court Affirms Order with No Geographic Restriction on Children’s Residence

Published on: April 29, 2023 | by Kelly McClure

iStock-1139699594-300x200 A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence. The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence. The court’s primary consideration is the child’s best interest. The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs. Lenz v. Lenz.

A mother recently appealed a trial court order naming the father as the conservator with the exclusive right to determine the children’s primary residence with no geographic restriction. The parties got married in 2014 and had two children. The husband was an Army officer, stationed at times in Georgia and Louisiana. He was stationed at Fort Hood in 2018 and the parties bought a home in Belton. The wife started school for nursing in Austin in 2019. They decided the husband would leave the Army in the fall of 2020. The wife told the husband she wanted to separate in January 2020. The husband petitioned for divorce the next month.

The trial court granted the divorce and appointed both parents joint managing conservators, with the husband having the exclusive right to designate the children’s primary residence. The mother appealed.

Texas Appeals Court Affirms Disproportionate Property Division in Divorce

Published on: April 25, 2023 | by Kelly McClure

iStock-483613578-300x204 A court in a Texas divorce must divide the marital estate in a just and right manner. A just and right division does not necessarily mean an equal division. Courts may consider a variety of factors in determining the property division, including fault in the break-up, income disparity, the relative earning capacity of the parties, education, age, physical condition, and financial condition of the parties. A husband recently appealed a disproportionate division of property.

The appeals court’s opinion stated the parties established a common-law marriage in 2015 after living together for 18 years. They separated in 2018 and the wife petitioned for divorce in 2019, claiming insupportability and cruelty. In his counter-petition, the husband also alleged insupportability and cruelty and adultery on the part of the wife. They each requested a disproportionate division of the marital estate.

FINAL HEARING ON PROPERTY DIVISION

They reached a settlement on the issues related to the children, so the final hearing addressed only the property division. The community estate included bank accounts, the husband’s retirement benefits, vehicles, and debt. The parties had also purchased two homes as tenants in common before they were married. They each lived in one of the homes after the separation.

Texas Court Denies Grandparents’ Request to Register Utah Visitation Order

Published on: April 23, 2023 | by Kelly McClure

iStock-1175949984-300x200 A child custody determination from another state may be registered so it can be enforced in Texas pursuant to Tex. Fam. Code section 152.305. A request must be sent to the Texas state court with a sworn statement the order has not been modified. The requestor must also identify who was awarded custody or visitation in the determination. The court will give the people identified in the request notice so they can contest the registration. To successfully contest the registration, the contesting party must show the prior court lacked jurisdiction, the determination has been vacated, stayed or modified, or they were not given proper notice before the court issued the determination order. Tex. Fam. Code 152.305(d). The grandparents of two children recently appealed a court’s denial of their request to register a foreign child custody determination containing their visitation rights.

After the parents divorced in Utah in 2016, the maternal grandparents were given grandparent time and certain related rights pursuant to a stipulation order in 2017. They later petitioned for modification, but the Utah court found it no longer had jurisdiction because the parties and children no longer lived in the state. The Utah court dismissed the petition, also noting in the order there had been a separate adoption case and termination of the mother’s parental rights.

Request for Registration

The grandparents requested registration of the divorce decree, stipulation order, and order dismissing their modification petition in Texas. Their request identified the father as the parent awarded custody or visitation in the custody determination.

Texas Court Denies Mother’s Request to Relocate with Child

Published on: February 25, 2023 | by Kelly McClure

iStock-1147846829-300x200 The best interest of the child is the primary consideration in Texas custody matters, but the courts have identified factors to be considered in determining the child’s best interest in certain circumstances. A mother recently appealed a court’s denial of her request to remove a geographic restriction, arguing the court failed to properly balance the appropriate factors.

The divorce decree gave the mother the exclusive right to designate the child’s primary residence with a geographic restriction. It also required both parents to provide the other written notice before taking the child out of the country.

The mother married a man who lived in Oklahoma. She ultimately petitioned for modification and requested removal of the geographic restriction. The father believed she had already moved to Oklahoma and sought the right to designate the child’s primary residence.

Texas Court Addresses Validity of Post-Nuptial Agreement

Published on: February 18, 2023 | by Kelly McClure

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While it is not the most comfortable thing to consider before or during the marriage, premarital and postnuptial agreements are critical to establishing each partner’s property and financial rights. Texas law provides a mechanism for couples in a marriage to accomplish the same results that could have been created in a premarital agreement. These post-nuptial agreements are often referred to as “marital property agreements.”

There is a general understanding that there are many reasons why a couple might want to change the character of their marital assets during their marriage. Accordingly, the formalities and enforcement rules for post-nuptial agreements are, in effect, the same as for premarital agreements. However, Texas post-nuptial agreements are often prone to issues surrounding unconscionability and involuntariness.

TEXAS COURT FINDS POST-NUPTIAL PARTIAL AND EXCHANGE AGREEMENT INVALID AND UNENFORCEABLE

In one of the more recent published opinions regarding post-nuptial agreements, a Texas appeals court affirmed a trial court’s judgment finding that a post-nuptial Partition and Exchange Agreement (PEA) was not valid or enforceable.

How Do Texas Courts Value a Medical Practice During Divorce Proceedings?

Published on: February 17, 2023 | by Kelly McClure

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Valuing a closely-held medical practice during a divorce in Texas requires a complex understanding of the measures of value, methods of valuation, and Texas statutes. Although business valuations do not adhere to precise mathematical processes, general methods, procedures, and principles exist. In Texas, determining the value of medical practice is often a critical and hotly contested aspect of divorce proceedings. Understanding how a court will incorporate the value of medical practice to come to a “just and right” division of property is crucial to securing a favorable outcome in a divorce.

TEXAS ASSETS DURING A DIVORCE

Texas is a community property state, meaning only property created or accrued during the marriage is subject to division during a divorce. Community property may include real estate, businesses, medical practices, cars, money, and retirement accounts. Under the law, courts must make divisions that are “just and right.” It is important to note that “just and right” does not necessarily equate to a 50 percent division.

OWNERSHIP OF MEDICAL PRACTICE AFTER A DIVORCE

Medical practices fall under an important caveat of Texas’ property division laws. The Corporate Practice of Medicine (CPOM) doctrine prohibits non-physicians, entities, or corporations from practicing medicine. Thus, a court cannot divide the ownership of a medical practice to a non-physician spouse; instead, the court can only determine and divide the value of the practice.

Texas Court Rejects Mother’s Request to Modify Relocation Restrictions in Recent Divorce Appeal

Published on: February 14, 2023 | by Kelly McClure

iStock-902725964-300x200 When a judge finalizes a Texas divorce involving the custody of children, they will determine which parent has the right to determine where the child will live. However, courts will almost always place certain restrictions on that parent’s ability to relocate. While a relocation restriction may not immediately be an issue for a parent with primary custody, that may change if they obtain employment elsewhere in the state or decide to move for other reasons.

MOTHER UNSUCCESSFULLY SEEKS MODIFICATION ORDER TO PERMIT RELOCATION

In a recent opinion issued by the Fifth District Court of Appeals in Dallas, the court rejected a mother’s request to modify a divorce decree that placed restrictions on her ability to relocate as well as her rights to travel internationally with her son. According to the court’s opinion, Mother and Father divorced in November 2016. At that time, the court gave Mother the right to determine where the child would live, provided it was within Dallas County, Collin County, or Southlake Independent School District. The divorce decree also required either parent to provide written notice to the other if they intended to travel outside the United States with their son.

In July 2017, Mother married a man who lived in Oklahoma. Mother started to spend as much time as possible in Oklahoma, and she would often take her son. Subsequently, Mother sought modification of the initial divorce decree in hopes of being able to relocate. Father filed a counter-petition, hoping to be named as their son’s conservator so he could keep the child in Dallas County, Collin County, or Southlake Independent School District.

Texas Court Prohibits Parents from Communicating

Published on: February 11, 2023 | by Kelly McClure

iStock-1163040189-300x200 Texas has a public policy to assure frequent and continuing contact between children and “parents who have shown the ability to act” in the children’s best interest. Tex. Fam. Code § 153.001(a). In some circumstances, however, parents are not able to effectively communicate and co-parent. In a recent case, the appeals court upheld a trial court order restricting the parents’ communication with each other and with the children while in the other parent’s care.

According to the appeals court, the agreed final divorce decree appointed the parents joint managing conservators. It gave the mother the exclusive right to designate the primary residence of the children and receive child support. Both parties had the right to consent to non-invasive medical and dental care and the right to consent to invasive procedures after meaningful consultation with the other.

Both Parents File Competing Motions for Enforcement and Modification

The mother moved for enforcement alleging the father had kept the children several days beyond his spring break possession.

The father filed his own enforcement motion, alleging the mother failed to maintain insurance, provide information required to submit a health insurance claim, pay uninsured health expenses, and notify him of activities and medical appointments. He also petitioned for modification.

Texas Trial Court Lacks Jurisdiction to Correct Errors in Retirement Division Years After Decree

Published on: January 24, 2023 | by Kelly McClure

iStock-543681178-300x200 A final and unambiguous Texas divorce decree that disposes of all of the marital property generally may not be relitigated. The Texas Family Code allows the trial court to keep continuing subject matter jurisdiction to clarify and enforce the property division, but it cannot change or modify it. In a recent case, a wife challenged an order purporting to clarify the division of the husband’s military retirement nearly 25 years after the divorce.

The parties divorced in 1996. In the decree, the trial court found they were married for at least 18 years and 11 months and the husband had served at least 13 years and 9 months “of creditable service toward retirement.”

Trial Court Awards Wife 50% of Husband’s Military Retirement

The trial court awarded the wife “[a]ll right, title, and interest in and to fifty (50) percent of [the husband’s military] disposable retired or retainer pay” and 50% of all increases in the disposable retirement or retainer pay. The husband served for several more years.