Texas Divorce Attorney Blog
Texas custody cases involving multiple children can be complex, because the children may not have the same needs. In a recent case, a father challenged a modification that gave the mother rights with regard to the youngest child that he was awarded for the older two children.
The parents got married in 2006 and divorced in 2017. They had three children. In the agreed divorce decree, both parents were named joint managing conservators with shared possession of the children. In November 2020, the father petitioned for modification, alleging a material and substantial change in circumstances related to one child’s emotional health and welfare. He subsequently amended the petition to alleged the same regarding another of the children, and ultimately filed an amended petition seeking relief for all three of the children.
The court held a bench trial and signed a partially handwritten memorandum, with a note that the mother’s attorney would draft the final order. Although the memorandum was entered in early November 2022, the parties did not receive it until April 2023.
Each parent moved for reconsideration and to reopen evidence. The mother also sent a draft of the final order to the trial court on May 3, 2023. She submitted updates for medical support arrearages. She moved for the court to sign the order or propose changes. The court held a hearing at the end of May to address the motions to reconsider and reopen evidence, and then signed the proposed order.
The court filed findings of fact and conclusions of law on the father’s request. The court found there was a material and substantial change in circumstances and that modification of conservatorship and possession and access was in the children’s best interest.
Differences Among the Children
The father appealed. He argued the trial court abused its discretion by separating the children and giving the mother the exclusive right to determined the youngest child’s primary residence and make decisions regarding him after consulting with the father. The father had those same rights for the older children. The youngest son was also placed on a different possession schedule. The father pointed to Tex. Fam. Code § 153.251(c) that provides it is preferable for the children to be together during possession.
The appeals court pointed out that this statute states a preference rather than a requirement. The record showed that there was evidence regarding and the court considered the needs of all of the children. There was evidence suggesting the youngest soon had different experiences and needs. There was evidence the older boys had a good relationship with the father and a strained relationship with the mother. The younger child had a good relationship with his mother and had not expressed an interest in being with his father more. There was also evidence regarding the effect of the older brothers’ treatment of the mother on the youngest.
The appeals court concluded there was at least some substantive and probative character supporting the court’s decision to have the youngest son on a different schedule from his brothers.
Relief Not Requested
The appeals court also rejected the father’s argument that the court erred in granting the mother relief that she had not specifically requested in her pleadings. The appeals court noted, however, that the father’s pleading had addressed those areas of relief. The appeals court also pointed out that when the court granted a right to one parent, it implicitly denied that relief to the other party. Both parties had also requested the court grant any other relief necessary for the children’s welfare or best interest. The appeals court concluded the pleadings supported the relief the court granted to the mother. The appeals court also noted that the court’s role in a Suit Affecting the Parent Child Relationship is to protect the child’s best interest. The court is granted broader powers than in other types of lawsuits and may not be limited to the pleadings in determining what is in the children’s best interest.
The appeals court affirmed the trial court’s judgment.
Call McClure Law Group
Multiple children with different needs and relationships with their parents can complicate a custody case. The experienced Texas custody attorneys at McClure Law Group can review your case and help you pursue the best legal result for your family. Set up a consultation by calling us at 214.692.8200.
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