A Texas custody order can generally only be modified if there has been a material and substantial change in circumstances and if the modification is in the child’s best interest. Texas courts have developed a non-exhaustive list of nine factors to be considered to determine the best interest of the child. In some cases, a parent seeks modification because of attempted alienation by the other parent.
In a recent case, both parents sought modification of the original custody order. Under the original agreed order, both parents were joint managing conservators, the child lived with the mother, and the father had visitation rights. The mother had the exclusive right to determine the child’s domicile and direct his education. The parents shared the right to direct the child’s medical and psychiatric care. The child was to be transferred for visitation at a designated location.
According to the opinion, the mother began refusing to transfer the child unless a police officer was present. The father filed suit to change the transfer location to a police department. The mother petitioned for supervised visitation with the father and to be named the sole managing conservator. The father sought the exclusive right to determine domicile.
The father testified he had remarried and now lived with his wife and other sons. His parents helped care for the child. He testified the mother had been trying to turn the child against him and he was concerned about the mother’s attempts to undermine his relationship with the child. He had not attended his son’s medical or psychiatric appointments or meetings with the school. He admitted to previous convictions for family violence against the mother.
A psychologist testified there were inconsistencies in the mother’s accusations. The psychologist opined that the mother was trying “to influence or alienate” the son from the father. She concluded the father should be given the exclusive right to direct the child’s medical and psychological care and to determine domicile.
The mother testified the child was anxious, sad, angry or aggressive after visiting his father. She secretly recorded phone calls between them. She testified the child would lose access to the therapy services he was receiving if he moved to live with his father. She said she took care of the child’s school, medical and psychiatric needs and helped him with school. She testified she asked for a police officer at the transfers because the father’s family was “aggressive” toward her.
The trial court awarded the father the exclusive right to determine domicile, gave the mother a standard visitation arrangement, and named both parents joint managing conservators. The mother appealed.
The appeals court considered the factors used to determine the child’s best interest. No one had directly testified to the child’s desires. There was, however, sufficient testimony from others to support a determination that he did not object to his father having custody. This factor was neutral.
The appeals court considered the claims of alienation in reviewing the child’s current and future physical and emotional needs. The psychologist had concluded the child would be better off living with his father, and the child’s amicus attorney agreed. This factor favored the father.
The appeals court also considered current and future emotional danger. The psychologist had testified regarding the negative effects of a parent’s attempt to alienate a child from the other parent. The mother testified she did not currently believe the father puts the child in danger or needs supervision of his visits. The psychologist also testified the mother fed information to the child to alienate him from his father, and the child’s statements to his therapist about being afraid of his father were the type of statements she referenced. It was within the trial court’s discretion to believe the psychologist.
The appeals court found the factor regarding programs available to help each parent promote the child’s best interest weighed in favor of the mother. She attended school meetings and ensured he received therapy. He could not continue treatment with his current therapist if he lived with his father in another county.
The appeals court found the factors of parental abilities, each parent’s plans for the child, and stability all favored the father, based on the testimony and recommendations of the psychologist.
Additionally, the appeals court found the mother’s actions indicated the current placement was improper. It considered the psychologist’s opinions about the mother’s attempted alienation and recording calls. The mother argued the child said he was afraid of his father and there had been previous domestic violence. The appeals court noted, however, that the trial court may focus on conduct after the original order in a modification request. The appeals court again noted the child’s statements were the type the psychologist found had been fed to him by his mother. The mother did not provide any excuses for her attempts to alienate the child, so that factor also favored the father.
The appeals court found seven of the nine factors favored the father, one favored the mother, and the other was neutral. The appeals court found the trial court could have reasonably concluded custody should be modified due to the mother’s intentional and repeated attempts to alienate the child from his father. The mother also argued the psychologist was not credible, but the appeals court found the witness’s credibility was within the trial court’s discretion to determine. The appeals court therefore affirmed the trial court’s order.
In this case, the courts took the allegations of alienation very seriously, and placed significant weight on the findings of the agreed-upon psychologist. Cases that turn on the child’s best interest are very fact dependent. If you need to modify a child custody order, a skilled Texas family law attorney can advise you. Call McClure Law Group at 214.692.820 to set up a consultation.
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