summary judgment

iStock-839381426-300x200 When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children. A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations. The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development. If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest. Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification. The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence. In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children. He also alleged the mother neglected the children.

iStock-926241578 A Texas common-law marriage can occur when the parties agree to be married, subsequently live together as married within the state, and represent themselves as married. Tex. Fam. Code Ann. § 2.401. The agreement to be married is a separate requirement that must be proven, although it may sometimes be inferred from evidence of the other two requirements.

CLAIM OF INFORMAL MARRIAGE

In a recent case, a woman appealed the dismissal of her claim of common-law or “informal” marriage. The parties had previously been married and were divorced in 2014. They subsequently rekindled their relationship later that year. The alleged wife petitioned for divorce in May 2016, claiming they had “rendered a common-law marriage” in December 2014 and had stopped living together around the time she petitioned for divorce.

The man denied that there was an informal marriage and filed a motion for summary judgment, seeking the trial court to find that the woman had failed to establish its existence. The affidavit the woman attached to her response stated the parties reconciled and agreed to be married on or about December 14, 2014. She said they moved in together and represented themselves as married. She also attached affidavits from others. She also submitted an email from the man to his child’s teacher in which he referred to her as his wife. She also provided a number of documents in support of her position. Following a hearing, the court granted the man’s motion for summary judgment.

Articles Tagged with summary judgment

Texas Modification of Person With the Exclusive Right to Designate Child’s Primary Residence

Father Files Modification Suit

Texas Informal Marriage: Agreement to Be Married