Abuse

Appeals Court Addresses Family Violence, Sole Conservatorship, and Child Support in a Texas Custody Case

Published on: May 27, 2024 | by Francesca Blackard

The Seventh District Court of Appeals recently considered a case involving significant issues of custody and child support. The trial court had appointed the father sole managing conservator and ordered him to pay child support to the mother. Both parents appealed.

Sole Managing Conservator

The mother argued the trial court erred in finding an incident in June 2021 prevented it from appointing both parents joint managing conservators. According to the appeals court, the mother pleaded guilty to misdemeanor assault on the father as a result of the referenced incident. The trial court found a history of abuse by the mother against the father and that the mother pleaded guilty to misdemeanor assault on the father regarding an incident on or about June 13, 2021. The court named the father sole managing conservator and the mother possessory conservator. The court stated in its conclusions of law that “[b]ecause Petitioner pleaded guilty to misdemeanor assault of Respondent, the Court cannot appoint the parties joint managing conservators.” The mother argued, based on this statement, that the trial court had concluded it was required to find a history of abuse based only on the guilty plea.

Tex. Fam. Code § 153.004(b), prohibits a court from appointing joint managing conservators there is credible evidence “of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . .” The statute does not define the meaning of “history.” The appeals court noted that it had not held that a single instance of physical abuse against the other parent necessarily constitutes a history of abuse, but had ruled that the trial court has the discretion to conclude that a single incident can constitute a history. The appeals court therefore concluded that the trial court could have found the mother’s guilty plea to a misdemeanor assault charge sufficient to prove the existence of a history of abuse against the child’s father.

Texas Wife Not Awarded Disproportionate Property Division Despite Allegations of Cruelty and Infidelity

Published on: June 6, 2023 | by Kelly McClure

A court’s division of property in a Texas divorce must be just and right. A just and right division does not have to be equal and may be disproportionate in some circumstances, including fault such as adultery or cruelty. A wife recently challenged a property division in which the trial court did not award her a disproportionate share of the community estate in light of her allegations of adultery and cruelty.

Alleged Cruelty and Infidelity

The wife testified the husband had multiple affairs during the marriage, according to the appeals court’s opinion. She also testified he had physically abused her. She said he had beaten her after she had surgery, resulting in her stitches breaking open. She further testified that he started hitting her again when she came home from the doctor and she got a kitchen knife to defend herself. She said she held the knife in front of her and “just the point of the knife” cut the husband when he got in her face, but she did not deliberately stab him. She testified the injury only needed a bandage, but the husband went to the doctor so he could later use it against her.

She testified she did not have any documentation of the husband’s alleged affairs. She also did not offer any documentation of her alleged injuries.

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.

Sibling Standing in Texas Custody Case

Published on: May 26, 2022 | by Kelly McClure

iStock-1271310078-300x200 Under Texas family law, certain close relatives of a child may seek managing conservatorship if they can sufficiently show the child’s current circumstances would significantly impair the child physically or emotionally. Tex. Fam. Code Ann. § 102.004(a)(1). A sister recently sought custody of her siblings, asserting standing under § 102.004(a)(1).

Children’s Sister Seeks Custody After Mother’s Death

According to the appeals court’s opinion, the adult sister filed suit seeking to be named the sole managing conservator of her minor siblings a few weeks after her mother’s death. She claimed she had standing to bring the suit because she was their sister and had “a close and substantial relationship with the children.”

The father asked the court to dismiss the case for lack of standing. The sister amended her suit to claim standing pursuant to Tex. Fam. Code § 102.004(a)(1). The sister attached to her brief a copy of her mother’s will, which named the sister and her husband as the children’s guardians. The father attached a letter to his own brief which showed the Texas Department of Family and Protective Services (“Department”) had ruled out allegations of abuse against him.

Cruelty and Fraud on the Community in a Texas Divorce

Published on: August 4, 2021 | by Francesca Blackard

iStock-848796670 The trial court must divide property in a just and right manner in a Texas divorce. The division must be equitable, and should not be punitive against either spouse. A husband recently challenged a property division, arguing it had been punitive against him.

The wife filed for divorce after the parties had been married for over 30 years. She alleged the husband had engaged in cruel treatment and had committed fraud on the community estate.

Wife’s Trial Testimony Highlighted Abusive Marriage

The wife said the husband often disparaged her appearance, individual worth, and profession in front of others and in private. According to appeals court’s opinion, the husband earned significantly more money than the wife and controlled the couple’s finances. The wife said the husband used his control of the couple’s finances punitively and, for example, would not give her money to go to Poland to visit her family when they were sick and would not pay for a surgery she needed. She also testified that he said her mother had died of a stroke because she was a bad daughter and a bad person. Other witnesses, including the couple’s daughter, corroborated the wife’s allegations of verbal abuse. The husband, however, denied it and claimed they were all liars.

Texas Appeals Court Upholds Custody Modification Following Alleged Assault and Abuse

Published on: May 23, 2021 | by McClure Law Group

iStock-1163040189 A Texas custody order may only be modified in certain circumstances. The parents may agree to change the order. The court may order modification if the child is at least twelve years old and wants to change which parent has primary custody. Otherwise, the parent seeking the modification must generally show that there has been a material and substantial change in the circumstances of the child or a parent since the current order was rendered. The court must consider the facts and circumstances of the specific case to determine if there has been a material and substantial change in circumstances. Common situations that may lead to a material and substantial change in circumstances include marriage, a change in employment, or relocation of a parent’s primary residence. Courts have also recognized changes related to the relationship between the parent and child, including abuse, mistreatment, or “poisoning the child’s mind.” In all cases, the modification must be in the child’s best interest.

Mother and Father Agree to Custody Modification

In a recent case, a father challenged a modification sought by the mother. According to the appeals court’s opinion, the parents divorced in 2012 and entered into an agreed order to modify custody in 2016. Pursuant to the 2016 modification, the mother was given the right to determine the children’s residence within a specified geographic restriction. The father was awarded custody beyond the standard order. The agreed order did not require either parent to pay child support.

After one of the children broke an arm, the mother moved to modify that order and the court entered the modification in 2018. The new order required the father to pay child support and changed his custody schedule. He appealed.

Texas Supervised Visitation

Published on: March 16, 2021 | by Kelly McClure

iStock-545456068-scaled A court must base its decisions regarding custody and visitation primarily on the child’s best interest. In a recent Texas case, a father challenged a court’s modification of his prior possession order, restricting him to supervised visitation with his daughter.

The mother petitioned to be named the child’s sole managing conservator and asked the court to either deny visitation with the father or, in the alternative, to require it to be supervised. She alleged the child had reported being spanked, being physically punished by her stepmother and her step-grandmother, being forced to stand in a corner, being underfed sometimes, being subjected to verbal abuse and threats of physical violence, and being required to stay in her room watching television for hours while she was in her father’s custody. The mother also alleged the child’s foot had been injured by her step-grandmother and not given medical attention. She further alleged the child’s stepmother repeatedly tried to put makeup on the child when she was allergic to it.

Cruel Treatment During Marriage Results in Disproportionate Division of Property

Published on: December 27, 2020 | by Kelly McClure

Fault in Divorce

iStock-1163040189 Divorces may be granted without fault, but Texas still allows divorce to be granted on fault-based grounds in certain situations. For example, a Texas divorce may be granted in one spouse’s favor if the other committed “cruel treatment” that makes the parties continuing to live together “insupportable.” Tex. Fam. Code Ann. § 6.002. Physical abuse can constitute cruel treatment, but physical abuse is not required for a Texas divorce court to find cruel treatment. When the court finds fault-based grounds for divorce, such as cruel treatment, the court may consider the fault in dividing the property. Specifically, the court can award a disproportionate share of the community estate to the spouse who is not at fault. A husband recently challenged such a disproportionate property division in his divorce.

The wife said the husband stopped paying attention to her after his business partnership went sour. She also said he had called her names and accused her of cheating, in addition to being violent against her around four or five times.

The wife alleged that, during one incident, the husband had closed a door on her arm after he had filed for divorce. She called the police, and the husband agreed to leave. The husband, however, claimed that he had simply closed the door after the wife left the room, but she forced it back open. He claimed the door hit him, then whipped back toward her and hit her elbow. He said he agreed to leave for a few hours after the police arrived, but ultimately decided to leave permanently so their child would not see them argue.

Texas Court Finds No Duress in Mediated Settlement Agreement

Published on: December 23, 2020 | by McClure Law Group

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.