Child Custody

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.

Credible Risk of International Abduction in Texas Custody Cases

Published on: January 28, 2025 | by Francesca Blackard

Sometimes when one parent has international ties, the other parent may have concerns about international abduction. There is a two-step statutory process to assess and mitigate risk of parental international abduction. The court must consider certain factors to determine if there is credible evidence of a potential risk. If the court finds there is a credible risk based on the factors, it must determine whether preventive measures should be taken.

In determining if there is a credible risk of international abduction, pursuant to Tex. Fam. Code § 153.502, the court must consider if there is evidence the parent took, withheld, or concealed a child in violation of someone else’s right of possession of or access to the child or threatened to do so. The court must also consider whether there is a lack of financial reasons for the parent to remain in the country. The court must also consider if the parent has recently engaged in planning activities that could facilitate taking the child from the U.S. Furthermore, the court must consider whether the parent has a history of domestic violence, criminal activity, or violating court orders. The court only has to find credible evidence supporting one of the factors.

In a recent case, a mother appealed a divorce decree that imposed prevention measures without a finding there was a credible risk of international abduction.

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.”

Court of Appeals Finds No Harm In Trial Court Failing to Submit Mother’s Request for Primary Residence of the Children to Jury

Published on: October 20, 2024 | by Kelly McClure

When a parent petitions for modification of a Texas custody order, the parties may raise multiple issues. In a recent case, a mother challenged a modification order, arguing the trial court had erred in not submitting one of her proposed questions to the jury.

Original Modification Proceedings

The parties had two children together. The trial court initially appointed them both joint managing conservators with neither having the exclusive right to designate the children’s primary residence, pursuant to the parties’ Mediated Settlement Agreement.

The father subsequently petitioned for modification, alleging both parents being joint managing conservators was not in the children’s best interest. He sought sole managing conservatorship, or, alternatively, the exclusive right to designate the children’s primary residence.

Texas Appeals Court Upholds Custody Order Treating Children Differently

Published on: October 6, 2024 | by Kelly McClure

Texas custody cases involving multiple children can be complex, because the children may not have the same needs. In a recent case, a father challenged a modification that gave the mother rights with regard to the youngest child that he was awarded for the older two children.

The parents got married in 2006 and divorced in 2017. They had three children. In the agreed divorce decree, both parents were named joint managing conservators with shared possession of the children. In November 2020, the father petitioned for modification, alleging a material and substantial change in circumstances related to one child’s emotional health and welfare. He subsequently amended the petition to alleged the same regarding another of the children, and ultimately filed an amended petition seeking relief for all three of the children.

The court held a bench trial and signed a partially handwritten memorandum, with a note that the mother’s attorney would draft the final order. Although the memorandum was entered in early November 2022, the parties did not receive it until April 2023.

Judicial Admissions in Texas Custody Modification Case

Published on: September 13, 2024 | by Francesca Blackard

Generally, to obtain modification of a Texas custody or child support order, a parent must show that there has been a material and substantial change in circumstances since the prior order. Texas courts have held that a parent alleging a material and substantial change of circumstances in their counter-petition has judicially admitted the existence of a material and substantial change in circumstances. In a recent case, a mother appealed an order granting the father’s counterpetition request for modification after granting summary judgment against her modification petition.

Proceedings

The parties got divorced in 2017 and entered into a mediated settlement agreement (“MSA”). The MSA named the parties joint managing conservators of their child and placed a geographic restriction of Lubbock County on the child’s residence. It stated that if either party moved out of the county, the parent who remained would get the exclusive right to designate the child’s residence in Lubbock County.

The mother got married again and moved to Indiana in September 2020. The father stayed in Lubbock County. The mother petitioned for modification giving her the right to designate the child’s primary residence with no geographic restriction and additional child support.

Texas Father Did Not Voluntarily Relinquish Child to Grandmother Before Parental Adjudication

Published on: July 21, 2024 | by Kelly McClure

Parents generally have a fundamental right to make decisions regarding their children. In Texas, there is presumption that being raised by the parents is in the child’s best interest. This presumption can be rebutted if the court finds appointment of a nonparent is in the child’s best interest and the parent “voluntarily relinquished actual care, control, and possession of the child to a nonparent . . .” for at least a year, with part of that time being within 90 days before the date suit was filed. Tex. Fam. Code 153.373. A grandmother recently appealed a directed verdict in favor of the child’s father in a Texas custody case, arguing he had voluntarily relinquished care, control, and possession of the child to her.

According to the opinion of the appeals court, the child lived with his maternal grandmother after the mother’s death in 2019. The father initially petitioned to adjudicate parentage in April 2021, requesting genetic testing and to be named the child’s sole managing conservator. The grandmother asked for both parties to be joint managing conservators, with her having the exclusive right to designate the child’s primary residence.

The parties signed a Mediated Settlement Agreement for temporary orders (“MSA”) that provided the father was adjudicated the child’s father based on genetic testing and the father would have possession of the child on mutual agreement of the parties, or set periods if the parties did not agree. The court signed the agreed temporary orders.

Conditions and Restrictions Related to Alcohol and Substance Abuse in Texas Custody Case

Published on: June 28, 2024 | by Kelly McClure

In a Texas custody case, the court must designate who will determine the child’s primary residence and establish the geographic area within which the child’s primary residence must be or specify that there is no geographic restriction. Tex. Fam. Code § 153.134(b)(1). The court bases its determination on the specific facts of the case. The trial court also has discretion to impose restrictions on a parent’s possession and access to the child that are in the child’s best interest. A father recently challenged a number of issues related to his possession and access to his children.

According to the opinion of the appeals court, the parties married in 2017 and had two children together. The mother petitioned for divorce in 2020, requesting the father have supervised possession of the children, submit to random alcohol and drug testing, and use a Soberlink monitoring device. A number of witnesses testified, including a custody evaluation expert and a co-parenting therapist, both of whom the court found credible. The final divorce decree named the parties joint managing conservators but gave the mother the exclusive right to designate the children’s primary residence with a geographic restriction of Williamson and contiguous counties. The order provided for a step-up possession schedule for the father and limited both parents’ romantic partners being around the children.

Geographic Restriction

The father appealed, challenging the geographic restriction. He argued it should be limited to Williamson County without including contiguous counties. He argued that it could be very difficult for him to attend activities and appointments if the children lived an hour away.