Texas Divorce Attorney Blog
A court may modify a Texas custody order if doing so is in the child’s best interest and there has been a material and substantial change in circumstances. The party seeking modification must show the conditions at the time of the prior order and the subsequent changes. To determine if there has been a substantial and material change, the factfinder must be able to compare historical and current evidence. A mother recently challenged a custody modification, arguing the father had not presented evidence of the circumstances at the time of the divorce.
According to the appeals court’s opinion, the 2018 agreed divorce decree appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.
The father petitioned for modification and the exclusive right to designate the children’s primary residence after the mother’s nanny told him the stepfather was abusing them.
Temporary orders gave the father possession and enjoined the mother from allowing the children to be in the presence of the stepfather or having contact with him.
A jury found the father should have the exclusive right to designate the children’s primary residence within the continental U.S. The mother’s motion for a new trial was overruled by operation of law.
Mother Appeals Jury’s Verdict
The mother appealed, arguing there was insufficient evidence to support a material and substantial change because the father had not presented evidence of the circumstances as of the date judgment was rendered on the final decree. She also argued the trial court abused its discretion by denying her motion for a new trial.
The appeals court determined, however, the jury could have reasonably found a material and substantial change in circumstances, considering the evidence in a light most favorable to the verdict.
Circumstantial Evidence Supported Verdict
The father testified the children seemed “okay” following the divorce. He said he had a “very good” co-parenting relationship and communicated directly with the mother. After the mother started dating the stepfather, the stepfather began sending him insulting texts and voicemails. The stepfather insisted on all communication going through him and left the father a voicemail saying he was “in control.” The mother asked the father to give up his parental rights multiple times. The children all said the stepfather hit them. They said they did not feel safe with the stepfather. The father testified the children’s other two nannies told him the children may have been neglected or abused.
The father testified the children had been very stressed when they first came to him, but their behavior had improved significantly.
The father testified he sought custody of the children for their safety.
The stepfather refused to participate in the child custody evaluation.
The psychologist opined it was a mistake for the mother to allow the stepfather to be the “primary disciplinarian.” The son told the psychologist the stepfather “always hits [him] and his sisters” when the mother was out or asleep. One of the daughters told him about the stepfather choking her. The other daughter said the stepfather spanked her and had choked her sister. She also said the mother “said it wasn’t true” when the children said the stepfather hit and choked them. The psychologist said CPS ruling out the allegations against the mother and stepfather did not mean no abuse had occurred. The psychologist could not conclude “with a reasonable degree of certainty” if the observations the nannies reported occurred. He opined it was possible the children were exposed to maltreatment that was detrimental to their emotional well-being. The psychologist testified he would be concerned about returning the children to the mother due to their “frame of mind” about what the stepfather did.
Three of the mother’s former nannies testified. One testified the stepfather was “beating up the kids really bad. . .” Another said she quit because she was uncomfortable after the mother and stepfather married and the children became difficult. The third nanny testified the stepfather came into the children’s room one night and stared at them in bed, but left quickly after he realized she was there. The mother subsequently told the nanny the stepfather would start taking care of the children on weekends. Two of them testified they smelled marijuana at the stepfather’s home.
The appeals court rejected the mother’s argument there was no evidence of a substantial and material change in circumstances. The mother’s relationship with the stepfather began after the divorce. The appeals court also found “substantial evidence that [the stepfather] . . . was physically abusive to the children.” There was no evidence either parent was abusive before the mother’s relationship with the stepfather. The father testified how the mother’s relationship with the stepfather changed his ability to co-parent and communicate with the mother. The appeals court noted these circumstances did not exist when judgment was rendered.
The appeals court concluded there was legally sufficient evidence to support the finding of a material and substantial change in the children’s circumstances, the parents’ ability to co-parent, and the children’s and the mother’s living situation.
Although the appeals court viewed the evidence in the light most favorable to the verdict in reaching its conclusion, the mother had offered evidence that contradicted it. The mother impeached the credibility of the nanny who reported the alleged abuse to the father. She admitting contacting the father after the stepfather fired her. She then worked for the father, but he also fired her. The father told the psychologist he wondered if she “exaggerated” what happened.
The children’s treating psychologist testified their behavioral changes could have resulted from the divorce or the mother’s remarriage.
Conflicting Evidence was Presented – But Insufficient to Overturn Verdict
The stepfather testified and denied abusing the children. He said he primarily disciplined them through “discussion and time-outs.” He admitted spanking one child once. He admitted sending the father over 100 texts, but said they were jokes. He said the father called and threatened the mother.
The mother testified the children did not know what she was talking about when she asked if the stepfather had been abusive. She said the father repeatedly threatened to take the children from her. She also said they were dirty and unkempt when he returned them.
The mother’s current nanny testified she had not seen the stepfather be abusive. The mother’s friend testified the stepfather had a healthy relationship with the children. The mother’s parents also testified in favor of the mother and stepfather.
The appeals court noted that the mother’s evidence contradicted the father’s, but the jurors could believe some witnesses and not others. The jury’s finding was not “so contrary to the overwhelming weight of the evidence as to be manifestly wrong and unjust.” There was therefore factually sufficient evidence to support the verdict.
The appeals court also concluded there was no abuse of discretion in the denial of the motion for a new trial and affirmed the judgment.
Modification Suits are Highly Fact-Dependent – Call McClure Law Group Today
This case shows that there is not a specific way to show the circumstances at the time of the prior order. An experienced Texas custody attorney can advise you if a modification may be available in your case and work with you to identify the evidence needed. Call 214.692.8200 to set up a consultation with McClure Law Group.