Texas Divorce Attorney Blog
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.
The mother asked to continue joint managing conservatorship, but requested the exclusive right to designate the children’s primary residence. She also requested an increase in child support.
The mother asked the court to submit four questions to the jury. The court, however, only asked the jury to determine if the joint managing conservatorship should be replaced by naming the father sole managing conservator.
The jury found the father should be named sole managing conservator.
Mother’s Appeal
The mother appealed, arguing the jury had not been properly charged. Specifically, she argued the court erred in failing to submit to the jury the question of who should be granted the exclusive right to designate the children’s primary residence.
An appeals court may only reverse a judgment based on a charge error if it was harmful because it probably caused an improper verdict to be rendered or probably prevented the party from properly presenting an appeal. A charge error may be harmless if the jury’s answer to the proposed question would be immaterial based on its other answers.
Tex. Fam. Code § 105.002(c)(1)(D) entitles a party to a jury verdict on which joint managing conservator is granted exclusive right to designate the children’s primary residence. Pursuant to § 153.132(1), a parent with sole managing conservatorship has this exclusive right unless the court has otherwise limited it.
The jury answered “yes” to the question of whether the father’s sole managing conservatorship should replace the joint managing conservatorship. The appeals court noted the mother’s proposed question regarding the right to designate the primary residence would only be necessary if the jury found the joint managing conservatorship should continue. The jury would not have reached the proposed question, because it would have been unnecessary once it determined the father would be named sole managing conservator.
The appeals court concluded the question submitted to the jury was consistent with Tex. Fam. Code § 105.002. The proposed question was immaterial based on the jury’s answer to the question submitted to it. The appeals court concluded any error in failing to submit the proposed question was harmless.
Seek Legal Advice
Whether you are seeking or opposing a child custody modification, you need assistance from a skilled Texas custody modification attorney. Schedule a consultation with McClure Law Group at 214.692.8200.