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On June 26, 2020, the Supreme Court of Texas issued a ruling that is sure to have a major impact on future non-parent custody cases in the state of Texas. In the case of In re C.J.C., the Supreme Court of Texas found that the presumption that it is in the best interest of a child to award possession to a fit parent versus a non-parent extends to modification cases.[1] This decision is certain to be seen as a major win for parents, as the Court reinforced the long-held notion that in most cases, a parent having custody of their child is best for the child.

The case involved grandparents of the child and the boyfriend of the child’s deceased mother attempting to modify the possession of the child and gain at least some court-ordered possession from the child’s father. The trial court found that the boyfriend was entitled to some possession and even some rights, such as the right to consent to emergency medical decisions.[2] The child’s father appealed this decision. Continue reading →

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In a Texas divorce case, the trial court that enters the divorce decree generally maintains continuing and exclusive jurisdiction over the children.  In some situations, however, transfer may be appropriate or even required.  If a party moves to enforce an order, but the child has resided in another county for at least six months, the trial court must transfer the case.  Tex. Fam. Code § 155.201.  To contest a transfer, a party must timely file “a controverting affidavit.”  The controverting affidavit must deny the “grounds for transfer exist . . .”  If the opposing party files a timely qualifying controverting affidavit, then there is a hearing.  If no qualifying controverting affidavit is timely filed, the case must be transferred without a hearing.  The transfer is mandatory if the elements are met, even when an enforcement action is pending.  A mother recently challenged an enforcement order that was followed by a transfer order just two hours later.

The mother was granted the exclusive right to designate the child’s primary residence and to designate it in McLennan County.  According to the appeals court’s opinion, she had moved to McLennan County by the time the divorce decree was entered in April 2018.

The father petitioned for enforcement of possession or access in June 2019 in Harris County, where the divorce decree had been issued.  The mother moved to transfer venue based on a statute requiring a case to be transferred to the county where the child has lived for at least six months.  Tex. Fam. Code § 155.201. The mother submitted an affidavit averring that she and the child had been living in McLennan County for more than six months.

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Whether a celebrity or not, we all worry about many of the same core issues when facing a divorce – How do I protect my stuff (money, investments, real property, personal property) and how do I protect the kids.

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As states begin to emerge from months of lockdown resulting from the COVID-19 pandemic, will there be an increase in divorce filings? This question is of particular interest in Texas, where state and local officials have started the process of easing quarantine restrictions. However, with much uncertainty as to the pandemic in the months ahead, the answer to this question remains unclear at the moment. So, should a potential increase in divorce filings effect your decision-making regarding your own divorce? Perhaps, an even more important consideration is not how many divorces there will be, but rather how filing for divorce changed since the pandemic began. Continue reading →

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It is not uncommon for a non-custodial parent who moves away to seek custody.  To change a Texas custody order, the parent must show that the change is in the child’s best interest and that there has been a substantial and material change in circumstances.  A mother recently challenged the denial of her petition for a change in custody.

The parents divorced in 2014 when the child was four.  The parties agreed in the decree the husband had the right to designate the child’s primary residence, but the mother petitioned for that right in December 2016.

The mother said the child lived with her until she enlisted in the Army in 2015.  According to the mother, the child then alternated between her grandmothers.  The mother remarried in 2016 and moved to Fort Hood.  She continued visiting the child most weekends until she was transferred to Poland for part of 2016.  She now lives in Colorado.

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When a party wants a judgment corrected, he or she generally has to challenge it directly within a specific time frame.  In some cases, however, a person may seek to avoid the effect of the judgment through a collateral attack.  A voidable judgment becomes final unless it is attacked directly in accordance with applicable procedural rules, but a void judgment may be challenged at any time.  In a recent case, a Texas appeals court had to determine if a provision in a Texas divorce decree ordering a father to pay the mother’s attorney’s fees was void or voidable.

The divorce decree included a fee provision that ordered the father to pay the mother’s attorney’s fees related “to issues concerning the suit affecting parent-child relationship [“SAPCR”] and the safety and welfare of the children.”

The father moved to modify the decree about a month after it was signed.  He asked for increased possession and decreased child support.  He also challenged the fee provision.  The court’s order increased his possession. In its Findings of Fact and Conclusions of Law, the court found there was not a sufficient change in circumstances of either parent or the children to support a change in the father’s child support obligations or the fee provision.  The court ordered him to continue to pay all of the mother’s attorney’s fees related to the SAPCR.

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Pursuant to the Texas Supreme Court’s 17th Emergency Order Regarding The Covid-19 State of Disaster, Texas courts may now modify or suspend deadlines for civil and criminal cases, except for child-welfare cases, until September 30. In child-welfare cases, the Texas courts may modify or suspend a deadline or procedure imposed by statute, rule or order for a period not to exceed 180 days and extend the dismissal date for any case previously retained on a court’s docket for no longer than 180 days. The 17th Emergency Order reiterates the status quo of following the trial court’s order in possession and access cases. Continue reading →

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In a Texas custody case, the court is not required to give parents equal periods of possession or visitation just because it appoints the parents as joint managing conservators. Tex. Fam. Code § 153.135. The court is also not required to award rights and duties of conservatorship to each parent equally or both jointly.  The court’s primary consideration should be the child’s best interest. Tex. Fam. Code § 153.002.  Case law has established a non-exhaustive list of factors to be considered in determining the child’s best interest.

A mother recently challenged a court order naming both parents joint managing conservators, but granting the father the exclusive right to determine the child’s primary residence.  The mother petitioned for divorce and moved from Missouri City to Dallas.  The child primarily lived with the mother for the next six years, but the parents sharing custody under temporary orders.

According to the appeals court’s opinion, both parents “contributed to the ongoing discord . . .” The mother failed to tell the father about some appointments or events before they occurred.  She sometimes kept the child from taking calls or made him stop conversations.  She would not allow the father to have makeup time, but sought makeup time for herself when her time was disrupted by bad weather.  The father “berated” the mother when she was late for the exchange, recorded their conversations, and tracked the child through an iPad.  He sometimes ignored the mother, but criticized her frequently for not communicating with him.  The mother testified the father was controlling and manipulative.

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Divorce can be complicated when the parties are citizens of different countries.  Each party may feel a divorce in the other’s country may be unfair to them.  There may be issues regarding jurisdiction.  Furthermore, even after one country issues a divorce, the other country may not recognize it.  A husband recently challenged a Texas divorce after a Mexican court had already granted a divorce.

The parties married in 1986 in Texas.  The husband is a Mexican citizen and the wife is a U.S. Citizen.  They had residences in both countries during their marriage.  Their business was in Mexico, but the wife and daughter lived in Texas at the time of the Texas divorce proceedings.

The husband filed for divorce in Mexico in 2015.  The wife challenged jurisdiction, arguing jurisdiction was in Texas because that is where the parties lived.  The Mexican court granted the divorce in April 2016.

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Texas family law contains a presumption that it is in children’s best interest for the parents to be appointed joint managing conservators.  If there is credible evidence of a history of child neglect or physical or sexual abuse by one parent against the child the court may not appoint both parents joint managing conservators.  Tex. Fam. Code § 153.004.  In a recent case, a mother challenged the appointment of both parents as joint managing conservators when there were allegations of abuse against the father.

The parents had five children together.  The mother filed for divorce in 2016.  The trial court appointed the parents joint managing conservators of the four minor children and granted the father the right to designate their primary residence.  The mother appealed, arguing the court erred in naming them managing conservators when there was credible evidence of a history or pattern of abuse.  She also challenged the admission of certain evidence and testimony.

The mother argued that testimony from pre-trial hearings, the father’s trial testimony, and his invocation of the Fifth Amendment during discovery constituted credible evidence.  The appeals court found, however, that the trial court had never actually admitted the pre-trial hearing transcripts into evidence and the testimony could therefore not be used to challenge the trial court’s order.

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