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Deviation from Standard Possession Order in Texas

mother and sonIt is crucial to retain an experienced Texas child custody attorney and obtain a clear record at the lower court level. In a recent Texas appellate decision, a mother appealed from a court’s decision in a lawsuit to modify the parent-child relationship. She argued that she and the father shouldn’t have been named joint managing conservators with her access being supervised. She also argued that the access the trial court gave was below the minimum access established by the Family Code’s standard possession order. She further argued that evidence wasn’t identified.

The case arose when a child’s parents divorced in 2011. The court appointed the parents as joint managing conservators. The mother had the right to decide the primary residence of the child, while the father simply had the right to visit. Three years later, the father petitioned for a modification, wanting the exclusive right to decide the child’s primary residence. He asked the court to deny the mother access or that her visits be supervised on the grounds that she physically abused the child, smoked and drank too much around the child, and moved around the city and had pulled the child out of school multiple times. The father also claimed the child was terrified of the mother’s new husband.

The lower court granted the father’s request. The mother appealed. She didn’t file a reporter’s record or follow the proper procedure, but she presumed the proof submitted supported the order. The appellate court explained that the child’s best interest is the lower court’s main consideration when deciding conservatorship under Tex. Fam. Code Ann. § 153.002. The lower court can modify possession or access only when it’s in the child’s best interests, and the child’s circumstances have materially and substantially changed.

The appellate court explained that if asked, the court was supposed to state in its order why it had deviated from a standard order under Tex. Fam. Code Ann. § 153.258. In this case, the mother didn’t ask for reasons. The mother had the burden on appeal to show that there’d been a mistake that required reversal. Therefore, the court had to presume the evidence supported the lower court’s grant of the petition to modify.

The mother also argued that the order hadn’t met the minimum requirements set forth for possession of a child in a standard possession order. The appellate court explained these guidelines were put in place to provide guidance about minimum possession for a joint managing conservator. The mother argued the order needed to be specific about its times and conditions. Since there was no reporter’s record, however, the appellate court had to presume the evidence supported the order.

The mother also argued it was an error for the trial court to sign an order that failed to identify evidence submitted. The appellate court again explained that when an order is different from a standard possession order, either party can ask the court to give its reasons for deviating from the standard under Tex. Fam. Code Ann. § 153.258. In this case, the record didn’t include a written request, and there was no reporter’s record to decide whether the mother had made an oral request. The lower court affirmed the appellate court’s orders.

If you need to get a child custody arrangement determined, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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