Child Custody

Do Step-Parents Have Any Rights?

Published on: April 20, 2017 | by Francesca Blackard

Yes, step-parents could have standing to bring a claim under Texas Family Code Section 102.003(11), often referred to as the “step-parent” statute. Under this statute, a custody suit may be brought by “[a] person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.” In other words, if the biological parent who is married to the step-parent dies, then the step-parent might have standing to pursue conservatorship, possession, of and access to the child.

This statute specifically gives rights to a step-parent who has helped raise one or more children of the parent who dies so long as the children have resided with the step-parent and deceased parent for at least six months ending not more than 90 days prior to the date of the filing of the petition. In determining whether or not the step-parent has standing, the court must determine whether the child’s principal residence was with the step-parent and deceased parent. The Court will look at the following factors when determining whether the residence was a “principal” residence of the child: (1) whether the residence is a fixed place of abode, (2) whether the residence was occupied or intended to be occupied consistently over a substantial period of time, and (3) whether the residence was permanent rather than temporary. In re Kelso, 266 S.W.3d 586, 590 (Tex.App.—Fort Worth 2008, orig. proceeding); Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.—El Paso 2002, no pet.). If the court reviews these three factors and determines that the child does have a principal residence with the step-parent and that such residency existed for a period of at least six months ending not more than 90 days before the date of filing of the petition, then standing is established for that step-parent.

After standing is established, there could be an addition hurdle for the step-parent if he or she is filing an original conservatorship suit, and that hurdle is known as the “parental presumption.” On the other hand, while the Texas Family Code imposes a “parental presumption” in original suits for parents over third parties seeking conservatorship, no such presumption applies to a modification suit filed by relatives or third parties, such as step-parents, who make a request to modify conservatorship, possession, or access. See In re V.L.K., 24 S.W.3d 338 (Tex. 2000). Therefore, depending on the type of claim that is brought, a step-parent could have a higher burden. If the step-parent is filing an original suit – then he or she may have to overcome the “parental presumption” and prove that the surviving parent is unfit in order to have certain rights.

Family Violence and Custody in Texas

Published on: April 18, 2017 | by Kelly McClure

A pattern of family violence can have a significant impact on custody issues in Texas. In Interest of DM, a Texas appellate court considered the impact of family violence in determining who should be managing conservator for children.

The father and mother appealed from the trial court’s order related to their parent-child relationship to three of their four children. They argued there was insufficient evidence to support a finding that having a joint managing conservatorship over the three children would impair their emotional development or physical health.

The couple’s first child was born in 1998, and the second was born two years later. When they were six and eight, their parents started using methamphetamine, sometimes while the kids were in the house and on a daily basis. The mother was diagnosed with bipolar disorder and tried to kill herself six times, blaming the father and wanting the kids to know this.

Modifications to Exclusive Right to Designate Residence of a Texas Child

Published on: March 21, 2017 | by Kelly McClure

In Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

Texas Contempt Findings for Violations of Morality Clause

Published on: March 1, 2017 | by Kelly McClure

In Interest of W.B.B. considered a request for contempt findings against a Texas mother. The parents of a child had divorced in 2010. The parents were named joint managing conservators of their child, and the father had the right to designate his residence. The couple agreed to multiple mutual injunctions.

Among other injunctions, their divorce decree incorporated a morality clause agreement that prevented both the mother and the father from permitting anyone with whom she or he was romantically involved to stay overnight while the couple’s son was with her or him. The injunction was to expire in 2015 when the son turned eight, or when one of the ex-spouses remarried, whichever event happened first.

The father remarried in 2013, and the son’s eighth birthday was in 2015. The father moved to modify the divorce decree. The couple reached a mediated settlement agreement that the court incorporated into its order granting the motion to modify the original agreement. The order allowed the father to designate the child’s primary residence and also kept the morality clause in effect with the exception that it would be void if the mother remarried before the child turned eight, and this would be the material and substantial change in circumstances. The mother’s child support obligation would increase to be in line with the Texas Child Support Guidelines, the mother would have to reimburse the father for their child’s health insurance, and the mother would need to notify the father of the remarriage if it happened before the child turned eight. The parents were also prohibited from coming within 50 feet of each other, interfering with the other’s job, and doing other things.

Child Custody Dispute Between Mother and Grandmother in Texas

Published on: February 28, 2017 | by Francesca Blackard

A recent Texas appellate case involved a child custody dispute that arose between a mom and her children’s paternal grandmother after their father committed suicide in 2014. After his death, the mother asked the trial court to appoint her managing conservator of the kids. The kids’ paternal grandmother cross-petitioned for the same appointment.

Before his death, the father had been CFO for a multinational corporation. His job required him to travel outside the country often. He met the mother in Mexico and became romantically involved with her. She immigrated to the United States, gave birth to three children, and married the father. While pregnant with the fourth child, the mother took a quick trip to Mexico to get a United States visa.

The immigrant officials denied her request for a visa on the ground that she’d previously been illegally present in the country for one or more years. For that reason, she had to stay in Mexico for 14 months waiting for a visa. Her kids stayed in the country with the father.

In re Cole – Who Holds the Power to Determine the Child’s School?

Published on: February 27, 2017 | by Ben Schwartz

The right to establish primary residence of a child has generally been perceived to have an inherent control over certain aspects of the right to make educational decisions. The Texas Court of Appeals out of Austin, however, recently handed down an interesting ruling regarding the connection between these two rights, thereby changing how many will interpret the meaning behind the right to designate primary residence. Continue Reading ›

Emotional Abuse by a Mother in Texas

Published on: February 21, 2017 | by Kelly McClure

Many people assume that emotional abuse is not as serious as physical or sexual abuse. This is not the case in parental rights and child custody matters in Texas. In the Interest of SD and GD concerned the termination of a parent-child relationship between a Texas mother and her two children. The father and mother had married in 2003 and had two children. The father divorced the mother in 2010. Shortly thereafter, the mother accused the father of physically and sexually abusing one of the kids and physically abusing the other. She made several allegations of abuse that caused Child Protective Services to investigate the father. Each time, they found there was no abuse.

Since she’d made multiple unfounded allegations of abuse, CPS investigated her for emotional abuse of one of the children, S.D. They determined she’d coached her daughter to allege abuse against the father and found the mother had been emotionally abusive.

The court granted a divorce but appointed both parents as joint managing conservators. Although it found there was evidence the mother had a history of emotional abuse, it determined she should have a modified possession order. The mother was supposed to see a therapist who specialized in anger management and false memory syndrome. She had to give the father a written verification she was seeing the therapist in order to have certain times of unsupervised possession. The modified possession order further provided that as the mother completed additional therapy, she’d have more unsupervised possession. She was also supposed to pay child support, although this was delayed so that the mother could complete the therapy.

Texas Parental Right to Make Medical and Psychological Treatment Decisions

Published on: January 3, 2017 | by Kelly McClure

In Davenport v. Davenport, a mother and a father each appealed from a trial court’s order related to their counter-petitions to modify the parent-child relationship. The couple was divorced in 2005, one year after their daughter was born. Ten years later, the mother filed a first amended petition to modify the parent-child relationship, hoping to modify a prior modification order rendered in 2012.

In the prior order, she and the father were appointed joint managing conservators of the daughter, but the court didn’t grant either the exclusive right to designate her residence. The order also granted both parents independent rights to make decisions about the daughter’s medical and psychological care and education as long as each first conferred with the other. Neither had to pay child support, although the father had to provide the daughter with health insurance. The parents were granted weeklong periods of possession during the school year and alternating two-week periods of possession during summers.

The mother asked to be appointed a sole managing conservator of the daughter or a primary joint managing conservator with the exclusive right to designate a primary residence, to make legal and educational decisions, and to consent to health care treatments for the daughter. She asked that the father have access through a standard possession order and that he pay monthly child support. The father counter-petitioned to have the rights that the mother wanted.

Property Division and Adult Disabled Child in Texas Divorce Case

Published on: December 27, 2016 | by Kelly McClure

In the Matter of Luna and Vicente Luna considered an appeal from a final divorce decree in 2015, which was memorialized in a written decree that granted a couple’s divorce, divided their property, and provided for support and conservatorship of their adult disabled child. The couple had married in 1980 and separated in 2014. During their marriage, the father started a construction company.

By the time of the divorce, the couple disagreed about the company’s ownership. The father claimed he’d sold half of the company to his son, but he later testified the son was an employee earning $23/hr. During cross-examination, the son admitted the name certificate did not include his name until 2015, and his father had responsibility for paying payroll taxes and had authority to write checks.

At trial, the father testified the construction company had paid no federal income taxes, nor had it entered profit and loss statements into the record. The total of the evidence came from introducing banking records for the construction company for 2013, 2014, and 2015.

Grandparent Tries to Intervene in SAPCR Case in Texas

Published on: December 21, 2016 | by Kelly McClure

There is a strong presumption that a child’s best interest is served when a natural parent is awarded custody in Texas. This presumption puts a heavy burden on someone who is not a parent who wants conservatorship of a child. The non-parent will have to prove to the court that appointing a parent as managing conservator would harm the child’s physical or emotional wellbeing.

Under Texas Family Code §102.003, there are 14 different categories to which someone may belong in order to bring a SAPCR (Suit Affecting the Parent-Child Relationship). A child or parent has the right to file a case. Moreover, so do certain other people who care for a child for a minimum of six months, as long as the six-month period ends less than 90 days before the date they file a petition.

In Re HF is a recent Texas appellate proceeding involving a grandmother’s plea in intervention in a lawsuit that affected the parent-child relationship. The case arose when the Attorney General brought a SAPCR proceeding to establish conservatorship over a mother and father’s child. The judge signed an agreed order, and the father appealed it. On the same day, the child’s grandmother petitioned to intervene in the SAPCR proceeding.