In a recent Texas appellate decision, a father appealed a divorce decree naming the mother the sole managing conservator of their two kids. The mother had filed for divorce in 2016. When the matter came to trial, the father was serving a 15-year prison sentence for aggravated assault with a deadly weapon and was waiting to go on trial for other issues.
By the time of the trial, their kids were nine years old. At trial, the mother testified that she’d separated from him because of abuse over a period of years. For example, he’d choked her son from an earlier marriage and once thrown her to the ground with a gun to her head and threatened to kill her. The kids were just three and had seen the abuse.
She testified that the kids had seen family violence a lot. Texts were introduced into evidence that also included threats from the father to the mother. An abusive letter from him was introduced. After he was convicted, the mother took the kids to the jail to visit him twice so that they could see he was fine. After the visit, the kids were emotionally affected, and she decided it wasn’t in their best interests to keep visiting him. The kids’ behavior improved after they stopped talking to the father, who the mother believed spoke to them inappropriately, in a way that they could not process.
She asked the court to deny him access to the kids because it wasn’t in their best interest. However, she also admitted she’d allowed him to access the kids because she felt she didn’t have a choice. She testified she couldn’t afford the travel costs for the kids to visit him after his transfer to a penitentiary. She took the kids for counsel multiple times a week.
The father represented himself and cross-examined her. He asked why she didn’t call the cops or ask for a protective order. She said it was because she was scared. She testified she wanted to be the sole managing conservator because the father made poor decisions that led to his being jailed. He’d also bitten one of the girls and jerked the kids around by the arms.
He testified he loved the kids and wanted to be appointed a joint managing conservator. He submitted into evidence certificates from classes on anger management and family violence prevention that he’d attended while in jail. He denied being violent toward the mother.
The divorce decree appointed the mother as the sole managing conservator and the father as possessory conservator. The decree ordered the kids to keep going to counseling and determined that any visits the father would have would be determined by the kids’ counselor.
The father appealed, arguing that the lower court had made a mistake in not ruling on his motions. For example, he argued that it should have responded to his motion for a continuance based on the mother’s failure to respond to his discovery requests. The appellate court found that he’d failed to use diligence in serving the motion for discovery and failed to explain the goal of the discovery he was seeking.
He also claimed it was an error for the lower court not to rule on his motion to interview the kids. The appellate court explained that the lower court had ruled on the motion and denied it because it usually only interviewed kids who were at least 12 years old, and the kids were nine. Texas Family Code section 153.009(a) made it mandatory to interview kids who are 12 years old but gave the trial court discretion over whether to interview a younger child. In this case, the court could decide not to interview.
The father also claimed it was an error to appoint the mother as sole managing conservator. The appellate court explained that there was a rebuttable presumption that appointing parents as joint managing conservators was in the child’s best interests under Texas Family Code section 153.131(b).
In this case, there was a lot of evidence to show that the kids were confused and upset by interactions with their father and that the mother was afraid to not cooperate with the father based on his abusiveness. The Court upheld the trial court’s ruling related to mom’s sole managing conservatorship. It did note that the trial court hadn’t given guidelines under which the father would be allowed to use his right of possession and access, and that portion of the order it remanded for clarification.
If your divorce involves matters related to child custody, call the Texas attorneys at the McClure Law Group at 214.692.8200.
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