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Deviation from a Standard Possession Schedule in Texas

childIn a recent Texas appellate case, the court considered an appeal of a divorce decree. The father challenged the part of the trial court’s order that determined deviating from a standard possession schedule was in his children’s best interest. The trial court had ordered he have access to the kids on Saturdays from 10-6 every other week.

The case arose from a couple’s second marriage to each other. They were first married in an arranged marriage in India and then moved to the United States. Before their first child was born, the father left. The father wasn’t a United States citizen and went back to India during their separation. He communicated with the baby through Skype.

The mother got a default divorce, and a standard possession order was put in place. She later testified she didn’t mind this because the father was in India anyway. He visited in 2012 and gave his child a birthday gift. The couple got remarried. The father claimed he remarried the mother because he loved the child and felt he had to remarry her if he wanted to be in his daughter’s life. The mother testified she’d remarried him because he’d promised not to leave her again.

They remarried with the mother sponsoring the father so that he could stay in the country and get immigration documents. They lived together and with the mother’s family. The father contributed to household finances and did other activities with the child, including going to the park. When the mother was pregnant with their second child, the parents separated again. The father claimed the mother and her family were emotionally, verbally, and financially abusive. He reported an incident to the family violence unit of the police department, and when he came back to the house, her family wouldn’t give him his belongings. He testified that his brother-in-law tried to force him to stay before the police came. He got all of his belongings except his immigration papers and went to live at a mosque until he could find his own place.

The mother and her family moved and didn’t tell him their address. The father was part of an address confidentiality program. The couple’s second child was born in 2013, and the father’s name wasn’t listed at the advice of hospital staff. The father tried to locate his wife and children. The police did a welfare check but didn’t give the address to the father, who had no contact with his kids for a period of time. He contested paternity of the second child at one time but later acknowledged his paternity.

He got court ordered visitation with his first child. These visits were supervised so that the child could get used to her father. The mother caused the child to miss appointments. Later, he was given unsupervised visits with both kids. The younger child didn’t want to get in the car with her father at one point, so the parties called the police.

The mother testified she wanted the father’s access restricted. She didn’t think the father could help with certain basic bathroom and eating matters because of her religious beliefs. She also testified the second child had a heart defect, and she was worried about her daughter suffering from excess heat or too much crying. She claimed the father had physically abused her once and forced her to have sex.

The father claimed his apartment was too small to have his daughters stay overnight, but he was willing to rent a different apartment if he had overnight visitation.

The divorce decree deviated from the standard possession order as not being in the children’s best interests. The father asked for findings of fact to support the deviation, and the court indicated it was because he didn’t care for the kids’ hygiene or injuries and didn’t support the kids while employed. It found he was dishonest with the police and failed to empathize with his kids.

The father appealed. The appellate court explained that in lawsuits that affect the parent-child relationship, there’s a rebuttable presumption under Texas Family Code § 153.252 that the standard possession order will give reasonable minimum possession of a child to a parent named as possessory conservator, since this is in the child’s best interest.

A deviation is only appropriate if the standard order’s terms are unworkable and against the child’s best interests. Generally, it’s not in a child’s best interests to have unsupervised visitation when credible evidence is presented of a history of child neglect. In this case, the record supported the trial court’s findings that supported its order, including findings of neglect and not caring for the kids for two years and not caring for them overnight when he lived with them. The lower court’s order was affirmed.

If you are concerned about child custody and parental rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas, June 9, 2016

Divorce and Taxes – What to do if your ex-spouse botched your joint tax return, May 31, 2016