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Right to Designate a Child’s Primary Residence in Texas

lifting childIn Philips v. Filla, a couple married in 2004 and divorced in 2007. They had one child. When they made their initial custody arrangement during the divorce proceedings, the mother had the exclusive right to designate the child’s primary residence. In 2010, however, they agreed to modify the divorce terms and agreed that the father would have the exclusive right to designate the child’s primary residence.

In 2010, the mother told Child Protective Services that the father was abusing the child. While an investigation was pending, the court rendered the modified order according to the settlement agreement, giving the father the exclusive right to designate the child’s primary residence. CPS ruled out the mother’s allegations that the father had abused the child and also expressed that it had a reason to believe the mother was emotionally abusive by possibly coaching the child to make abuse allegations against the father and putting the child through many intrusive medical exams connected to the allegations.

The father petitioned to modify the earlier order and asked for temporary and permanent orders that the mother have only supervised visitation with the child. The wife counter-petitioned to modify the order, again alleging the father’s abuse and asking she be awarded the right to designate a primary residence for the child. The trial court ordered that her visitation with the child be supervised and ordered the mother to begin therapy and undergo a psychological evaluation.

In 2014, a jury trial was held on the mother’s counter-petition. The jury denied her request and determined the father should retain the right to designate a primary residence. The court held a bench trial on a schedule for the child. The trial court ordered certain days on which the mother could have possession of the child. She appealed.

On appeal, she argued that the evidence didn’t support the jury’s conclusion, that the trial court had erred in failing to issue factual findings and legal conclusions, and that the trial court had erred in modifying the earlier order and deviating from standard possession orders.

The father argued that she’d waived her right to factual findings and legal conclusions because she’d asked under rule 296 of the Texas Rules of Civil Procedure instead of the Texas Family Code. Under Section 153.258 of the Texas Family Code, when possession is contested, and the possession of the child is different from a standard possession, a request can be made of the court, and the court is required to state specific reasons why it varied from the standard order. The mother argued that the cases that went against her were wrongly decided.

The court explained that the cases cited didn’t hold that a party waives all complaints about a lack of factual findings and legal conclusions by failing to cite to the specific code section. Instead, the cases held that a request citing rule 296 waived a complaint under section 153.258. The trial court hadn’t filed findings or conclusions under rule 296, which applies to issues decided by a trial court rather than a jury.

In lawsuits that affect a parent-child relationship, the parties are entitled to receive a jury verdict related to which parent has the exclusive right to designate the child’s primary residence, but not on the issue of the terms of possession or access. In this case, the jury decided the first issue but not the second.

Under rule 296, the court only needed to make findings and conclusions related to its rulings on the second issue. The appellate court found that the trial court had made a mistake in not filing findings and conclusions under rule 296. However, the trial court’s failure to file didn’t require reversal if the party asking for findings didn’t suffer harm from the failure to file. In this case, the mother knew why the trial court had deviated, based on the record.

Specifically, the guardian ad litem appointed for the child had provided five reasons she recommended that the mother receive less visitation than what was standard. The trial judge had stated it would follow those recommendations.

With regard to the mother’s other concerns, the appellate court noted that there was extensive testimony that the father and his wife were doing everything possible to serve the child’s best interest. In contrast, the mother had not kept in touch with the child’s therapist or teachers, and the child had not wanted overnight visits with the mother at all initially. There was a lot of evidence that the mother had committed emotional abuse against the child, and although she’d made progress, there was also much evidence the child had become happy and well-adjusted living with her father. The trial court’s modification order was affirmed.

If your divorce involves matters related to child custody, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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