Best-Interest Factors May Not Be Relevant in Texas Custody Case Where Both Parents Are Fit

In a Texas custody case, the court is not required to give parents equal periods of possession or visitation just because it appoints the parents as joint managing conservators. Tex. Fam. Code § 153.135. The court is also not required to award rights and duties of conservatorship to each parent equally or both jointly.  The court’s primary consideration should be the child’s best interest. Tex. Fam. Code § 153.002.  Case law has established a non-exhaustive list of factors to be considered in determining the child’s best interest.

A mother recently challenged a court order naming both parents joint managing conservators, but granting the father the exclusive right to determine the child’s primary residence.  The mother petitioned for divorce and moved from Missouri City to Dallas.  The child primarily lived with the mother for the next six years, but the parents sharing custody under temporary orders.

According to the appeals court’s opinion, both parents “contributed to the ongoing discord . . .” The mother failed to tell the father about some appointments or events before they occurred.  She sometimes kept the child from taking calls or made him stop conversations.  She would not allow the father to have makeup time, but sought makeup time for herself when her time was disrupted by bad weather.  The father “berated” the mother when she was late for the exchange, recorded their conversations, and tracked the child through an iPad.  He sometimes ignored the mother, but criticized her frequently for not communicating with him.  The mother testified the father was controlling and manipulative.

The father invited the mother to the child’s birthday parties and to his family’s Christmas celebration.  He offered to pay for a hotel for the mother and child so they would not have to drive back to Dallas in bad weather after an exchange.  He also made sure the child called the mother when with him.

The mother said disparaging things about the father.  She testified the father called the child too often.  The mother and her parents testified the father’s visitation periods disrupted family routines and were excessive.

The trial court appointed a psychologist to perform a custody evaluation.  The mother testified she opposed the behavioral checklist the psychologist sent to the schools and asked the principals and teachers not to complete them.  She did not think the child needed to go to an optometrist.  She also opposed the psycho-educational evaluation which found the child had mild-to-moderate dyslexia and mild dysgraphia.  It was recommended the child be evaluated by an occupational therapist for fine motor skills, but the mother also opposed that.  The professional who performed the psycho-educational evaluation recommended the child attend a particular school specializing in teaching children with learning disabilities, but the mother opposed it for fear the child would be stigmatized.

The psychologist reported the mother had lied to her.  The mother told her the father did not discuss concerns about the child with her on the phone, but the father had a recording of a lengthy conversation showing he did.

The psychologist recommended joint custody, with the father having the exclusive right to determine the child’s primary residence and make educational decisions.  She concluded he was an effective advocate in addressing the child’s learning differences, but the mother was deferential to the school.  She concluded that the mother disparaged the father and tried to limit the child’s time with him, but the father had encouraged the child’s relationship with his mother.

The court appointed the parents joint managing conservators and granted the father the exclusive right to designate the primary residence and to make educational decisions.  The mother appealed, arguing there was not sufficient evidence to support the court’s order.

The mother argued the trial court’s order was an abuse of discretion based on the best-interest factors a court should consider.  The appeals court noted that both parents were fit, so several of the factors were not relevant or helpful.  There was no evidence of emotional or physical danger or an improper relationship between the child and either parent. Several of the factors were neutral.  The court found both parents were competent parents, provided a stable home, had support systems, and had plans to promote the child’s best interest.

The appeals court found there was evidence the child loved both parents and wanted them to stop fighting.  The appeals court noted there was evidence he “was most affected by his parents’ discord” while with his mother.  The appeals court found this factor weighed in favor of the father.

The public policy factor also weighed in favor of the father, because the state’s policy is for children to have frequent and continuing contact with their parents, if fit, and for parents to share in the rights and responsibilities of raising their child.  There was evidence the father supported the child’s relationship with the mother, but that the mother and her parents tried to limit the father’s contact with the child.

The appeals court also found the parent’s ability to advocate for the child’s educational needs to be a relevant factor.  The mother opposed evaluations and actions that the school had not recommended, but the father worked with other resources to figure out how to help the child.  This factor also weighed in favor of the father.

The appeals court found no abuse of discretion because there was sufficient evidence supporting the decision.

This case shows that some of the best-interest factors may not be relevant or helpful when both parents are fit.  In such cases, it is important to present all favorable evidence.  Even when both parents are fit, an experienced Texas custody attorney can help get the best results possible.  If you are anticipating a custody dispute, contact McClure Law Group at 214.692.8200 to schedule a consultation.


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