Texas Divorce Attorney Blog
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.
The trial court appointed both parents temporary joint managing conservators and gave the father the exclusive right to designate the child’s primary residence as long as she stayed in the same school district. The trial court also suspended child support, with each party being responsible for supporting the child when they had possession and access.
At trial, the court interviewed the fourteen-year-old child in chambers. The child’s therapist, the custody evaluator, and both parents also testified.
The trial court granted the modification petition and named the father primary conservator. The mother was given an expanded standard possession schedule and ordered to pay child support.
The Mother’s Appeal
The mother appealed. The mother argued there was insufficient evidence supporting giving the father the exclusive right to designate the child’s primary residence. She argued the evidence showed the child intended to present false statements to the court, was not truthful with the therapist and custody evaluator, fabricated issues regarding the mother’s home, and failed to disclose issues at the father’s home. She argued both the therapist and custody evaluator failed to properly investigate or consider the lies and inappropriate behavior.
There was evidence the child lied to her mother often. The therapist and custody evaluator did not believe she lied to them. She had told both she wanted to live with her father.
The therapist testified she had been the child’s therapist for four and a half years and treated her for depression, anxiety, and suicidal thoughts. Her anxiety manifested primarily during transitions, originally more when she went to her father’s, but ultimately changing to be more significant at her mother’s. The child told the therapist about upsetting things her mother said about her father. The therapist testified the mother had requested a referral for a parental alienation specialist, but the child had not reported anything said in the father’s home about the mother. The therapist also expressed concerns the mother would file a complaint against her with the licensing board because she had filed one against the child custody evaluator.
The therapist testified the mother and stepfather were concerned about the child being honest. The child had told the therapist she had lied to the mother but the therapist did not think the child had lied to her. The therapist thought the child was less anxious and more comfortable in the father’s home, although she loved both parents. She considered the child’s relationship with her father to be “pretty healthy,” but thought her relationship with her mother was volatile.
The child custody evaluator did an initial child custody evaluation and subsequently prepared a revised evaluation after the mother disagreed with the evaluation and pointed out errors. The custody evaluation recommended the father be appointed primary conservator and given the exclusive right to establish the child’s primary residence. He also recommended a standard possession order for the mother The child compared her mother to the FBI and had anxiety when her mother told her things, questioned her, or looked into things. The mother asked the custody evaluator to look into the father’s drinking and past violence, but the custody evaluator found no records relating to such behavior and the father denied it. The Texas Department of Family and Protective Services ruled out alleged emotional abuse by the father in an investigation in 2018.
The custody evaluator said he had not told the child his recommendation. The child told him she wanted to live with her father and that she was cautious in what she told her mother to avoid conflict.
The father testified his relationship with the mother was strained, but about the same as it was at the time of the divorce. He did not think the child had lied to him. He said he tried to encourage the child to respect her mother. He said he had not been aggressive or violent toward the mother. The father said the mother had accused him of fathering another child and told their daughter about it. He said the mother required the child to have her cell phone charged and on while she was with father and would question the child and repeatedly text the father about the phone. The father asked the court to require communication between the parents to occur through a messaging service.
The mother testified she wanted at least 50-50 custody. She expressed concerns about the child’s mental health. She did not want the child to continue seeing the therapist because the therapist had not told them the child was suicidal and she learned about it during the therapist’s trial testimony. She thought her relationship with the daughter was good but strained. She said she did not share issues she had with the father with the child unless the child asked questions.
The mother said the child was disruptive and rude when she came back from the father’s home. She also did not like how the father communicated with her. She expressed concerns the father would not comply with court order’s because he had not let the child leave with her after the first day of trial even though it was her possession period. He did bring the child to her home after they met with his attorney, but the mother was scheduled to get the child after school. The mother testified she thought the child lied to the custody evaluator and therapist.
The appeals court concluded there was sufficient evidence to support the court’s decision to appoint the father as conservator with the exclusive right to designate the child’s primary residence. The therapist and custody evaluator both believed it would be in the child’s best interest and the child expressed her own preference to primarily live with her father.
The appeals court also concluded there was sufficient evidence to support the court’s order for the mother to pay retroactive child support while the temporary orders were in place. The appeals court affirmed the trial court’s order.
Seek Advice from a Knowledgeable Family Law Attorney
In this case, the court granted a modification based at least partly on the child’s preference. If your child is at least 12 years old and wants a change in custody or visitation, an experienced Texas custody modification attorney can advise you on whether pursuing a modification may be appropriate in your case. Call McClure Law Group at 214.692.8200 .