Texas Divorce Attorney Blog
Texas has a public policy to assure frequent and continuing contact between children and “parents who have shown the ability to act” in the children’s best interest. Tex. Fam. Code § 153.001(a). In some circumstances, however, parents are not able to effectively communicate and co-parent. In a recent case, the appeals court upheld a trial court order restricting the parents’ communication with each other and with the children while in the other parent’s care.
According to the appeals court, the agreed final divorce decree appointed the parents joint managing conservators. It gave the mother the exclusive right to designate the primary residence of the children and receive child support. Both parties had the right to consent to non-invasive medical and dental care and the right to consent to invasive procedures after meaningful consultation with the other.
Both Parents File Competing Motions for Enforcement and Modification
The mother moved for enforcement alleging the father had kept the children several days beyond his spring break possession.
The father filed his own enforcement motion, alleging the mother failed to maintain insurance, provide information required to submit a health insurance claim, pay uninsured health expenses, and notify him of activities and medical appointments. He also petitioned for modification.
In her counterpetition, the mother argued the court should find the father “knowingly” made false or unfounded reports of child abuse to CPS “with the intent to deceive.” She also alleged a history or pattern of neglect and asked that he be denied access or allowed only supervised visitation.
The father amended his petition to ask the court to consider a history or pattern of neglect by the mother and limit her possession. He asked to be sole managing conservator and requested child support.
The mother also amended her counterpetition, seeking the exclusive right to consent to invasive treatment and an injunction prohibiting certain actions by the father, including coming within 500 of her home except during exchanges.
She also amended her enforcement motion, asking the court to compel the father to pay his share for the parent facilitator and to hold him in contempt, jail, and fine him for failing to pay healthcare expenses. The father then amended his enforcement motion asking the court to hold the mother in contempt and have her jailed and fined.
The parenting facilitator had no concerns about medical neglect by the mother. He testified about a dispute because the mother had a generic inhaler for one of the children. The facilitator said the child’s doctor advised using different inhalers was not “wrong.” The facilitator’s report stated the children had been treated like “tools” against the mother, which could result in immediate and “long-term emotional harm.” The father had acknowledged communicating with the children through their window from the bushes outside.
A caseworker testified the father filed five CPS reports alleging medical neglect, but she found no reason to believe there was wrongdoing by the mother.
The father explained the child’s doctor sent a letter stating the child should not use the brand of inhaler the mother had. He thought his CPS complaints were legitimate. He said he spoke to the children from outside “twice maybe” because the mother would not let him talk to them.
The mother testified the doctor assured her the inhaler “was fine.” She said the father had shown up uninvited multiple times. She expressed concerns about the children’s safety and welfare if he got unsupervised visitation.
Trial Court Prohibits Parties from Communicating
The trial court found the father could not coparent or effectively communicate with the mother and that coparenting communication was not in the children’s best interest. The court ordered the parents not to communicate with each other except when necessary and only by mail. The court ordered them not to communicate with the children during each other’s possession. Each parent was prohibited from tracking the children in the other parent’s possession and from going within 500 feet of the other’s home. Additionally, they were prohibited from canceling or attending appointments during the other parent’s possession.
The ruling gave the mother makeup days and modified the father’s child support and medical support. Neither party was held in contempt. The trial court found both parents owed unreimbursed medical expenses and the father owed for parenting facilitation. The trial court awarded attorney’s fees to the mother.
The trial court determined the father acted in bad faith and with malicious purpose in making the CPS reports. The court found the reports were false and without factual foundation. The trial court restricted the father’s access and ordered him to pay the mother’s reasonable attorney’s fees relating to those reports.
Father Appeals
The father appealed the final order, arguing the trial court erred because the mother did not have standing, there was insufficient evidence he made a false report without factual foundation, and the prohibition on communication and attending medical appointments was not in the children’s best interest.
Pursuant to Texas Family Code § 261.107, a person commits an offense if they knowingly make a false report of child abuse or neglect with the intent to deceive. A finding by a court in a suit affecting the parent-child relationship that a report was false or lacked factual foundation may be grounds for modification to restrict access to the child.
The father argued a modification could only be based on a finding of a false report when the prosecuting attorney filed suit against the person who filed it. The language in the subsection providing for modification does not reference prosecution. The basis for the modification is the court’s finding that the report was false or lacked factual foundation. The appeals court concluded the trial court did not err in determining its finding was a proper ground for modification.
The father argued the only information he had from the doctor was that a specific inhaler was needed. He believed failure to correctly treat the child’s asthma could cause death. The father argued the statements the doctor had made to others had not been passed on to him. He argued the parenting facilitator had testified regarding a miscommunication between him and the doctor.
The appeals court pointed to evidence in the record that the doctor told multiple people the generic inhaler was appropriate. The court acknowledged possible confusion due to the letter from the physician’s assistant, but noted the father had filed multiple reports based on the same conduct after the investigations found no wrongdoing or danger. The caseworker told the father there was no wrongdoing and advised him to contact the doctor with any questions, but he instead filed another report. There was also evidence he tried to use the children to control and emotionally affect the mother.
Appeals Court Finds No Abuse of Discretion
The trial court was in the best position to determine the father’s credibility. The appeals court did not find an abuse of discretion in the determination the reports were false and without factual foundation.
The father also argued there was insufficient evidence the restrictions on communication and attending appointments were in the children’s best interest. Nothing in the record indicated the trial court eliminated the parties’ rights to access medical records or consult with healthcare providers. The appeals court therefore rejected the father’s argument the ruling endangered the children or precluded the “possibility of consistency.”
The appeals court acknowledged the public policy to encourage shared rights and duties in raising children, but noted the primary consideration is the child’s best interest. The appeals court pointed to the parenting facilitator’s testimony. The appeals court also noted the caseworker testified the father had filed CPS reports even after she told him she talked to the doctor and found no wrongdoing. The caseworker also testified the mother expressed concerns about her safety. Additionally, the case worker was concerned the children were placed in a position of reporting back about their mother.
The appeals court also noted the mother’s testimony about the father communicating with the children from outside, showing up uninvited, and telling the children to hide a cell phone from their mother. The mother also expressed concerns about the children’s safety if the father’s visitation was unsupervised.
If You are Seeking Modification or Enforcement of a Custody Order, Call McClure Law Group Today
This case shows the possible consequences of a contentious co-parenting relationship. If you are considering seeking enforcement or modification of your custody order, a knowledgeable Dallas custody attorney can advise you of your options. Set up a consultation with McClure Law Group by calling 214.692.8200.