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Deviation from Standard Possession When Texas Mother Has Mental Health Problems

mother and babyIn a recent Texas appellate case, a mother appealed from a trial court order that limited her possession of her daughter to once a month over one year. The case arose when the Department of Family and Protective Services brought an action for the protection and conservatorship of a couple’s three-year-old daughter. It asked for parental rights to be terminated in its initial pleadings.

The caseworker testified that she’d removed the child from the mother’s custody because there were concerns about the mother’s drug use and mental health, including suicide efforts and about 40 hospitalizations. When removed, the child lived with her maternal grandmother in dirty conditions. The Department put her with a foster family, which was ultimately not able to handle her special needs, including a narrowed esophagus and delayed speech development. She was later placed with her father.

The daughter did well in her placement with the father. Meanwhile, the mother did perform the tasks she was asked to perform by the Department. Accordingly, the Department no longer wanted to terminate her parental rights. The Department asked that the mother and father be named as joint managing conservators, with the father named as the parent who could designate the child’s primary residence. The Department recommended a standard visitation order.

When the final hearing was concluded, the court announced that the parents would be joint managing conservators, although the father would decide the daughter’s primary residence. The court announced the mother could have standard visitation. The father’s attorney asked for clarification. The mother’s attorney told the court that when parents live more than 100 miles apart, as here, a standard possession order would give the parent who didn’t have custody a choice to exercise visitation every other weekend or once a month under Texas Family Code section 153.313.

The trial court announced the mother could visit with her daughter once each month for the first year, and subsequently, she could choose between every other weekend and once a month. The mother appealed.

The appellate court explained that the child’s best interests are the primary consideration when deciding conservatorship issues and possession of and access to a child. It reasoned that public policy dictated that the court make sure children and parents who were able to show they could act in their children’s best interest had continuing contact. Under FAM § 153.001(a), the courts are also supposed to make sure the child’s environment is safe and stable and to encourage parents to share in their kid’s development.

The guidelines of a standard possession order are supposed to guide courts about the minimum possession available when a parent is a joint managing conservator. It’s presumed that the standard possession order gives a parent a reasonable minimum possession and that it’s in the child’s best interest, but this presumption is rebuttable.

If there’s enough evidence to rebut the presumption, the trial court can deviate from the standard possession order. It can consider the child’s age, developmental status, needs, circumstances, and best interest, as well as circumstances surrounding the conservator and parent and other relevant issues.

Under Section 153.258, a parent can ask the court to specify why it deviated from a standard possession order. The mother didn’t ask for findings under this law. On appeal, she argued that there was no evidence to show that deviating from the standard possession order for the first year was in the child’s best interest.

The appellate court disagreed, explaining that she and the child’s father lived about 300 miles apart. The child was three at the time of the final hearing, and both parties had testified that the exchanges were hard for her. The exchange point was a police station roughly halfway between where the parties lived. The two had had past problems in communication. The Department’s representative had testified she was worried about the mother’s ability to take care of the daughter at issue, along with other kids. The appellate court found that the evidence supported a conclusion that the deviation and a gradual transition were in the daughter’s best interest. The trial court 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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