Texas Divorce Attorney Blog
A Texas child custody case arose after a mother asked the court to grant her plea to the jurisdiction and request for dismissal of a petition to modify the parent-child relationship, which was filed by her children’s stepmother.
The mother and father in the case had divorced in 2011. The court appointed them joint managing conservators of their three kids. The kids lived with the mother, who had the right to choose their primary residence. They spent one night a week and every other weekend with their father. They had dinner with him on a different night once a week.
Two years later, the father was diagnosed with cancer, and the parents modified their child custody order, reducing the father’s child support and life insurance obligations, and adding an overnight on the night the kids ate dinner with him. The former couple agreed that if either parent became incapacitated or died, the kids would continue to have reasonable contact with their extended family on the other side.
The father married the kids’ stepmother in 2014. Two years later, he was admitted to the ICU because of his cancer and stayed in the hospital or a long-term care center long-term. He died in October 2016. Before he died, however, starting that year in March, the kids did an overnight only once a week with the father and stepmother. They stopped doing overnights with the stepmother that summer.
After the father died, the stepmother petitioned to modify the parent-child relationship. She claimed to have standing to do this under Texas Family Code section 156.002(b), based on section 102.003(a)(11). The mother argued she didn’t have standing because the kids hadn’t lived with her for the requisite six months necessary under section 102.003(a)(11).
At a hearing, the mother and her current husband testified the kids hadn’t spent a night with the stepmother since the summer. The stepmother admitted the kids had visited only rarely, but she claimed the mother unilaterally changed possession. The court denied the mother’s plea to the jurisdiction.
The mother petitioned for a writ of mandamus. She argued it was an abuse of discretion for the court to deny her plea to the jurisdiction, among other things. She argued that the stepmother didn’t have standing for her petition to modify the parent-child relationship.
The appellate court explained that in Texas, the parent-child relationship is covered by the family code (Tex. Fam. Code Ann. §§ 102.003-.007). Only those with standing to file an original suit under chapter 102 are allowed to sue to modify the parent-child relationship. The list of people includes those with whom the child or the child’s parent has resided for at least six months ending not more than 90 days before the filing of the petition if the child’s guardian is deceased at the time the petition is filed.
In this case, the kids stayed overnight at the stepmother’s house just one night a week for a few months and once in the fall of 2016. These facts couldn’t make the stepmother’s house the kids’ principal residence during that time period. The stepmother hadn’t presented anything to show the kids lived with her for a time period adding up to six months.
The stepmother argued that the kids didn’t live there because the mother had withheld them in violation of the custody order. However, there was no evidence that the father or stepmother tried to pick up the kids from school or the mother’s house as required under the order and that the mother denied them access. Finally, the stepmother wasn’t a party to the child custody order and didn’t have standing to claim any violations of it.
The appellate court conditionally granted the mother’s petition for a writ of mandamus.
If you are concerned about child custody and parental rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas, June 9, 2016
Divorce and Taxes – What to do if your ex-spouse botched your joint tax return, May 31, 2016