Child Custody

Court Has Broad Discretion in Determining Texas Custody

Published on: September 29, 2023 | by Kelly McClure

The court’s primary consideration in determining Texas custody is the best interest of the child. Tex. Fam. Code § 153.002. There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence. Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence. A father recently challenged the custody, child support, and property division in his divorce.

Custody

The parties separated after fourteen years of marriage. They had two children together. The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.” The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed. She testified she thought it was in the children’s best interest to live with her. She alleged the father drank too much around the children.

Texas Fit Parent Presumption Not Applicable in Certain Modification Proceedings

Published on: September 20, 2023 | by Kelly McClure

Texas family law has a rebuttable presumption that it is in the child’s best interest for the parents to be appointed joint managing conservators. Additionally, generally a parent must be named sole managing conservator or both parents named joint managing conservators unless there is a finding such appointment would not be in the child’s best interest because it would significantly impair the health or emotional development of the child. Tex. Fam. Code 153.131.

A maternal great-grandmother recently appealed a modification appointing the father sole managing conservator.

According to the appeals court’s opinion, the parents’ divorce decree in 2016 had named the mother sole managing conservator and the father possessory conservator. A subsequent order appointed both parents temporary joint managing conservators, but gave the great-grandmother sole possession. A subsequent order in 2019 named the mother and great-grandmother joint managing conservators with the great-grandmother having the exclusive right to designate the child’s primary residence. The order stated the father had failed to appear at trial and defaulted. He was appointed possessory conservator.

Texas Court Allows Mother to Relocate with Children to Maine

Published on: September 1, 2023 | by Kelly McClure

Generally, a parent seeking modification of a Texas custody order must show that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. The determination of whether there has been a material and substantial change of circumstances is fact specific. By way of example, a material and substantial change in circumstances may include a parent’s remarriage or, when there is a request for a change in child support, a change in income. A father recently appealed a modification order that permitted the mother to relocate with the children.

The parties’ agreed divorce decree named the parties joint managing conservators and granted the mother the right to designate the children’s primary residence. Subsequently, the mother petitioned for modification in 2022 because she wanted to move to Maine with the children. Following trial, the trial court granted the modification. Specifically the trial court ordered modified the children’s geographic restriction to include Maine, modified the father’s possession and access, and awarded the mother child support.

The father appealed, arguing that the trial court abused its discretion because there had been no substantial or material change in the parties’ or children’s circumstances, and that the move was not in the best interest of the children.

Texas Legislative Update

Published on: August 16, 2023 | by Brandon Joseph

During its most recent session, Texas lawmakers adopted and passed several amendments and updates to the Texas Family Code, which were then formally signed into law by the Governor.

These revisions and additions to the Texas Family Code impact numerous areas of family law, including but not limited to: (1) suits for the dissolution of marriage; (2) suits affecting the parent-child relationship; (3) protective orders; and (4) discovery in cases filed under the Texas Family Code.

Ranging from modifications to elements necessary to prove a claim, clarifications to existing codified law, and the removal of automatically triggered disclosure requirements, family law practitioners throughout the State of Texas should familiarize themselves with these changes and how such changes impact their practice.

Appeals Court Reverses Denial of Motion to Compel Arbitration in Texas Custody Modification Case

Published on: August 16, 2023 | by Kelly McClure

Sometimes after agreeing to mediate or arbitrate future controversies at the time of a Texas divorce, one party may not want to follow through on that agreement when a controversy actually arises. In other cases, the parties may disagree on whether the alternative dispute resolution provision applies to a particular claim or controversy. In such circumstances, the party seeking arbitration may move to compel arbitration. That party must show that there is a valid arbitration agreement and that the dispute is within the scope of the agreement.

Arbitration Provision

In a recent case, a father appealed the trial court’s denial of his motion to compel arbitration. According to the appeals court’s opinion, the final divorce decree included an alternative dispute resolution provision. The provision provided the parties shall mediate the controversy in good faith before setting a hearing or initiating discovery in a suit to modify the terms and conditions of conservatorship, possession, or child support, except in case of an emergency. The provision specified it did not apply to enforcement actions. It required a party seeking modification to give the other party written notice of the desire to mediate. If the parties do not agree on a mediator within 10 days or the other party does not agree to or fails to attend mediation, the party seeking modification is relieved of the obligation to mediate. The provision further provides that if a controversy could not be settled by mediation, the parties agreed to submit it to binding arbitration with a specified arbitrator.

In the fall of 2021, the father started trying to negotiate custody matters. In July 2022, the mother’s attorney sent an email to the father’s attorney stating modifications did not need to be arbitrated. The father’s efforts to negotiate or mediate failed, and he sent an email demanding arbitration at the beginning of August.

Texas Supreme Court Reverses and Remands Custody Case for Child Interview

Published on: August 14, 2023 | by Brandon Joseph

In some Texas custody disputes, a parent may want the court to hear an older child’s preferences regarding conservatorship or possession. Upon application of a party in a suit affecting the parent-child relationship, the court is required to interview a child 12 or older in chambers to determine their wishes regarding conservatorship or the exclusive right to determine their primary residence, in a nonjury trial or hearing. If the child is under 12, the court may interview them, but is not required to do so. Tex. Fam. Code § 153.009(a). A mother recently appealed a judgment awarding the father the exclusive right to designate the children’s primary residence after the court declined her request for an interview.

Trial

According to the opinion of the Supreme Court of Texas, the father petitioned for divorce in 2017. He requested the court interview the children. The mother, however, demanded a jury trial and paid the associated fee. Mother subsequently withdrew the jury demand. Her attorney stated she did so to benefit from the interview provision in Section 153.009(a), and the mother ultimately testified similarly.

The mother’s attorney requested an in-chambers interview with the oldest child pursuant to Section 153.009(a) by letter emailed to the court coordinator. The attorney also repeatedly called the coordinator to try to get the interview scheduled. The attorney also requested the interview again at trial, explaining the mother had withdrawn her demand for a jury trial to allow for the interview. The court, however, denied the request because the mother had not filed a written motion. The oldest child was 13 at the time of the trial.

Texas Appeals Court Reverses Summary Judgment in Custody Modification Case

Published on: August 6, 2023 | by Francesca Blackard

Generally, when a parent seeks modification of a Texas custody or visitation order, they must show that they modification would be in the child’s best interest and that there has been a material and substantial change in circumstances since the earlier of the prior order’s rendition or the date the mediated or collaborative law settlement agreement upon which the prior order was based was signed. Tex. Fam. Code 156.101. Whether there have been material and substantial changes is a significant issue in many modification cases. In a recent case, a father challenged an order granting a no-evidence summary judgment in favor of the mother and disposing of his claims for modification.

Pursuant to the parents’ mediated settlement agreement and agreed order, neither had the exclusive right to designate the primary residence of the child, but instead each parent had the right to establish the primary residence during their possession periods within 15 miles of the child’s school. The mother, however, was permitted to establish the primary residence during her possession at her home until she moved. Possession alternated weekly during the school year and every two weeks during the summer break.

Father Seeks Modification

In January 2021, the father moved to modify the order, alleging material and substantial changes in circumstances. He requested the exclusive right to designate the child’s primary residence and to make a number of decisions, including to enroll the child in team sports. He also asked that the mother be enjoined from enrolling the child in extracurricular activities that would occur during his possession. He also asked for the right of first refusal and an expansion of the geographic restriction to two counties.

Make-Up Time in Texas Possession and Access Enforcement Actions

Published on: July 14, 2023 | by Kate Mataya

When a parent is denied court-ordered possession or access by the other parent, the court has discretion to order additional periods of possession or access to make up for that time. Tex. Fam. Code § 157.168. These additional periods of possession of access must be the same type and duration as what was denied, may include weekends, holidays, and summer, and must happen by the second anniversary of the date possession or access was denied. A father recently challenged an enforcement order that did not award him make-up time for the time he was denied.

When the parties divorced, the court appointed them joint managing conservators of the children and granted them equal possession and joint authority for decision-making.

Enforcement Action

The father filed an enforcement motion in September 2020, alleging the mother failed to turn the children over to him twice. He make-up time as well as attorney’s fees and costs. He subsequently added twelve more alleged violations occurring after his original enforcement motion was filed. He also alleged the mother did not get his agreement or inform him that the daughter changed schools.

Texas Presumption of Paternity after Termination of Someone Else’s Parental Rights

Published on: June 13, 2023 | by Kate Mataya

Under Texas family law, there are several ways to establish a parent-child relationship between a man and a child, including an unrebutted presumption, an acknowledgement of paternity, adjudication of paternity, adoption, or the man consenting to assisted reproduction resulting in the birth of a child. A mother recently challenged her former husband’s standing to bring a Suit Affecting the Parent Child Relationship (“SAPCR”) and the trial court’s adjudication of him as the child’s father.

The mother gave birth to the child, identified as “Luke” in the appeals court’s opinion, a month after her marriage to “Justin.” The mother identified another man as the child’s biological father and Justin admitted he was not the child’s biological father.

According to the opinion, the other man’s parental rights were terminated in September 2011 pursuant to an “Order of Termination.”

Justin lived with the child and held himself out to be the child’s father. The mother gave birth to a daughter, identified in the opinion as “Gracie,” in August 2012. Continue Reading ›

Texas Grandmother Awarded Custody

Published on: May 30, 2023 | by Kelly McClure

Texas family law only allows non-parents to seek custody of children if they meet certain statutory requirements. For example, a grandparent or certain other relatives may petition for managing conservatorship if doing so is necessary because the child’s present circumstances at the time suit was filed would significantly impair their health or emotional development. Tex. Fam. Code Ann. § 102.004(a)(1).

The parents had an on-and-off relationship for several years, according to the appeals court’s opinion. Both parents and the maternal grandmother had lived in Colorado. The mother, who was pregnant with their second child, moved to Texas in late 2017 with the older child. The grandmother followed in 2018. The father remained in Colorado.

The mother was killed in a car accident in May 2019. The father filed a petition for writ of habeas corpus, alleging the grandmother was illegally holding them. His petition was denied.