Child Custody

Texas Court Awarded Guardianship to Aunt Instead of Grandmother

Published on: December 16, 2020 | by McClure Law Group

T iStock-637904234 exas custody disputes usually involve the children’s parents. When both parents unexpectedly pass away, however, their families may fight over who gets guardianship of the children. Generally, if the parents did not designate a guardian, a grandparent would be awarded guardianship. If multiple grandparents seek guardianship, then the court will appoint one of them, considering the circumstances and child’s best interest. If no grandparent seeks guardianship, then the court will appoint the next of kin, considering the circumstances and the child’s best interests if there are multiple people with the same degree of kinship. Tex. Est. Code Ann. § 1104.052. A minor who is at least 12 years old may be able to select a guardian, if the court finds the selection is in the child’s best interest and approves. Tex. Est. Code Ann. § 1104.054.

Texas Court of Appeals Denies Writ to Vacate Order Compelling Therapy

Published on: December 10, 2020 | by Kelly McClure

In an ideal situation, child custody may be resolved by agreement, potentially following mediation. In some cases, however, Texas child custody cases become long protracted affairs with disputes that last for years.

Fit Parents in Texas Decide If Non-parent Gets Conservatorship or Possession of Their Children

Published on: November 2, 2020 | by Francesca Blackard

Parents have fundamental rights to make certain decisions regarding their children. These rights can make it difficult for a non-parent to gain custody or visitation rights to children over the objection of a fit parent in a Texas custody case. A Texas appeals court recently held a trial court could not award an unrelated person visitation and access to children when the father was fit.

The father filed for divorce in 2018. The court signed temporary orders naming the mother and father joint managing conservators of the children.

A person who was unrelated to the children, identified as “B.B.,” intervened and requested a temporary restraining order. She alleged the children had been living with her during the case. She claimed the mother had mental health problems and had physically abused one of the children. The court issued a temporary restraining order and ordered the parents not to remove the children from B.B.’s possession until a hearing occurred.

False Allegations May Justify Texas Custody Modification

Published on: October 19, 2020 | by McClure Law Group

When a parent wants to modify a Texas custody order, they generally must show that the change is in the child’s best interest and that there has been a material and substantial change in circumstances since the prior order. Whether a material and substantial change has occurred is fact-specific and varies depending on the circumstances of the case. Recently, a father successfully argued that false allegations of sexual abuse and the resulting investigations constituted a material and substantial change in circumstances justifying a custody modification.

The father petitioned to modify the Order in Suit Affecting the Parent-Child Relationship to give him the exclusive right to designate the child’s primary residence. The previous order gave the mother that right and included a modified standard possession order until the child turned five, at which time the father would begin a standard possession order.

The mother expressed concerns the child may have been sexually abused during the first extended summer visitation with the father under the standard possession order. The father let the child go back to the mother’s home for a weekend because she was homesick. The mother saw bruises on the child’s inner thigh and pubic bone and the child had a urinary tract infection. The mother took the child to a clinic and then for an examination by a sexual assault nurse examiner (“SANE”). She also took her for a forensic interview at the child Advocacy Center.

Material and Substantial Change Must Be Related to Requested Texas Custody Modification

Published on: October 12, 2020 | by Francesca Blackard

When a parent seeks modification of Texas custody order, he or she must a substantial and material change in circumstances since the previous order. Generally, the change must be material to the modification the parent is requesting. A mother recently appealed a custody order modification allowing the father to have unsupervised visits, arguing he had not shown a material and substantial change in circumstances.

The mother filed a Suit Affecting Parent Child Relationship (SAPCR) asking the court to limit the father’s access to their daughter after he received a DWI in 2012. Her affidavit detailed a number of events related to the father’s intoxication during the marriage. She asked to be named sole managing conservator. She also asked that the father be allowed only supervised visitation and that he be prohibited from drinking for 12 hours before and during the visitation.

The father was from Canada and had returned there. He did not contest the suit and a default judgment was entered. It named the mother sole managing conservator and limited the father to supervised visitation.

Texas Court Grants Mother’s Wishes to Relocate Out of State

Published on: October 1, 2020 | by Spencer Page

For many Texas co-parents, relocating to another state is their “white whale:” relentlessly sought after, but seldom granted by the family courts. However, one Texas mother recently obtained the (nearly) unobtainable. This mother had spent years dealing with a co-parent, the father, who made even the simplest of child-rearing decisions difficult. The father had cancelled dentist appointments without telling the mother, hid the children from their mother, taught the children how to fight (by telling them to hit the mother), and refused to consent to the children’s enrollment in daycare despite one of the children suffering from speech delays that required professional attention. Nonetheless, this mother persisted.

Court Grants Mother Exclusive Rights in Texas Custody Case

Published on: September 8, 2020 | by Kelly McClure

In a Texas custody case, the court may grant certain rights and duties to one parent exclusively even if both parents are named conservators. The court may limit the rights or duties of a conservator parent if it finds, in writing, that doing so is in the child’s best interest. Tex. Fam. Code Ann. § 153.072. Courts may grant exclusive rights to one parent when the other reuses to cooperate with respect to those aspects of the child’s care. A father recently challenged a court order granting the mother a number of exclusive rights.

The mother petitioned to modify the parent child-relationship. She requested the exclusive right to designate the primary residence without a geographic restriction so she could accept a job and move to Louisiana.

The mother took a job in Monroe, Louisiana in 2015. The father also moved to Monroe, and they all lived there for several months. The mother testified he was abusive toward her. She also said he took her green card and moved with the children back to Texas.

Texas Supreme Court Finds that Parental Presumption Extends to Modification Suits

Published on: July 2, 2020 | by McClure Law Group

On June 26, 2020, the Supreme Court of Texas issued a ruling that is sure to have a major impact on future non-parent custody cases in the state of Texas. In the case of In re C.J.C., the Supreme Court of Texas found that the presumption that it is in the best interest of a child to award possession to a fit parent versus a non-parent extends to modification cases.[1] This decision is certain to be seen as a major win for parents, as the Court reinforced the long-held notion that in most cases, a parent having custody of their child is best for the child.

The case involved grandparents of the child and the boyfriend of the child’s deceased mother attempting to modify the possession of the child and gain at least some court-ordered possession from the child’s father. The trial court found that the boyfriend was entitled to some possession and even some rights, such as the right to consent to emergency medical decisions.[2] The child’s father appealed this decision. Continue Reading ›

Texas Court Must Transfer Custody Enforcement Action After Child Moves

Published on: June 29, 2020 | by McClure Law Group

In a Texas divorce case, the trial court that enters the divorce decree generally maintains continuing and exclusive jurisdiction over the children. In some situations, however, transfer may be appropriate or even required. If a party moves to enforce an order, but the child has resided in another county for at least six months, the trial court must transfer the case. Tex. Fam. Code § 155.201. To contest a transfer, a party must timely file “a controverting affidavit.” The controverting affidavit must deny the “grounds for transfer exist . . .” If the opposing party files a timely qualifying controverting affidavit, then there is a hearing. If no qualifying controverting affidavit is timely filed, the case must be transferred without a hearing. The transfer is mandatory if the elements are met, even when an enforcement action is pending. A mother recently challenged an enforcement order that was followed by a transfer order just two hours later.

The mother was granted the exclusive right to designate the child’s primary residence and to designate it in McLennan County. According to the appeals court’s opinion, she had moved to McLennan County by the time the divorce decree was entered in April 2018.

The father petitioned for enforcement of possession or access in June 2019 in Harris County, where the divorce decree had been issued. The mother moved to transfer venue based on a statute requiring a case to be transferred to the county where the child has lived for at least six months. Tex. Fam. Code § 155.201. The mother submitted an affidavit averring that she and the child had been living in McLennan County for more than six months.

Texas Appeals Court Upholds Denial of Mother’s Petition to Change Custody

Published on: June 22, 2020 | by McClure Law Group

It is not uncommon for a non-custodial parent who moves away to seek custody. To change a Texas custody order, the parent must show that the change is in the child’s best interest and that there has been a substantial and material change in circumstances. A mother recently challenged the denial of her petition for a change in custody.

The parents divorced in 2014 when the child was four. The parties agreed in the decree the husband had the right to designate the child’s primary residence, but the mother petitioned for that right in December 2016.

The mother said the child lived with her until she enlisted in the Army in 2015. According to the mother, the child then alternated between her grandmothers. The mother remarried in 2016 and moved to Fort Hood. She continued visiting the child most weekends until she was transferred to Poland for part of 2016. She now lives in Colorado.