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Articles Posted in Child Custody

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On June 26, 2020, the Supreme Court of Texas issued a ruling that is sure to have a major impact on future non-parent custody cases in the state of Texas. In the case of In re C.J.C., the Supreme Court of Texas found that the presumption that it is in the best interest of a child to award possession to a fit parent versus a non-parent extends to modification cases.[1] This decision is certain to be seen as a major win for parents, as the Court reinforced the long-held notion that in most cases, a parent having custody of their child is best for the child.

The case involved grandparents of the child and the boyfriend of the child’s deceased mother attempting to modify the possession of the child and gain at least some court-ordered possession from the child’s father. The trial court found that the boyfriend was entitled to some possession and even some rights, such as the right to consent to emergency medical decisions.[2] The child’s father appealed this decision. Continue reading →

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In a Texas divorce case, the trial court that enters the divorce decree generally maintains continuing and exclusive jurisdiction over the children.  In some situations, however, transfer may be appropriate or even required.  If a party moves to enforce an order, but the child has resided in another county for at least six months, the trial court must transfer the case.  Tex. Fam. Code § 155.201.  To contest a transfer, a party must timely file “a controverting affidavit.”  The controverting affidavit must deny the “grounds for transfer exist . . .”  If the opposing party files a timely qualifying controverting affidavit, then there is a hearing.  If no qualifying controverting affidavit is timely filed, the case must be transferred without a hearing.  The transfer is mandatory if the elements are met, even when an enforcement action is pending.  A mother recently challenged an enforcement order that was followed by a transfer order just two hours later.

The mother was granted the exclusive right to designate the child’s primary residence and to designate it in McLennan County.  According to the appeals court’s opinion, she had moved to McLennan County by the time the divorce decree was entered in April 2018.

The father petitioned for enforcement of possession or access in June 2019 in Harris County, where the divorce decree had been issued.  The mother moved to transfer venue based on a statute requiring a case to be transferred to the county where the child has lived for at least six months.  Tex. Fam. Code § 155.201. The mother submitted an affidavit averring that she and the child had been living in McLennan County for more than six months.

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It is not uncommon for a non-custodial parent who moves away to seek custody.  To change a Texas custody order, the parent must show that the change is in the child’s best interest and that there has been a substantial and material change in circumstances.  A mother recently challenged the denial of her petition for a change in custody.

The parents divorced in 2014 when the child was four.  The parties agreed in the decree the husband had the right to designate the child’s primary residence, but the mother petitioned for that right in December 2016.

The mother said the child lived with her until she enlisted in the Army in 2015.  According to the mother, the child then alternated between her grandmothers.  The mother remarried in 2016 and moved to Fort Hood.  She continued visiting the child most weekends until she was transferred to Poland for part of 2016.  She now lives in Colorado.

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Pursuant to the Texas Supreme Court’s 17th Emergency Order Regarding The Covid-19 State of Disaster, Texas courts may now modify or suspend deadlines for civil and criminal cases, except for child-welfare cases, until September 30. In child-welfare cases, the Texas courts may modify or suspend a deadline or procedure imposed by statute, rule or order for a period not to exceed 180 days and extend the dismissal date for any case previously retained on a court’s docket for no longer than 180 days. The 17th Emergency Order reiterates the status quo of following the trial court’s order in possession and access cases. Continue reading →

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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.

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Texas family law contains a presumption that it is in children’s best interest for the parents to be appointed joint managing conservators.  If there is credible evidence of a history of child neglect or physical or sexual abuse by one parent against the child the court may not appoint both parents joint managing conservators.  Tex. Fam. Code § 153.004.  In a recent case, a mother challenged the appointment of both parents as joint managing conservators when there were allegations of abuse against the father.

The parents had five children together.  The mother filed for divorce in 2016.  The trial court appointed the parents joint managing conservators of the four minor children and granted the father the right to designate their primary residence.  The mother appealed, arguing the court erred in naming them managing conservators when there was credible evidence of a history or pattern of abuse.  She also challenged the admission of certain evidence and testimony.

The mother argued that testimony from pre-trial hearings, the father’s trial testimony, and his invocation of the Fifth Amendment during discovery constituted credible evidence.  The appeals court found, however, that the trial court had never actually admitted the pre-trial hearing transcripts into evidence and the testimony could therefore not be used to challenge the trial court’s order.

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Under Texas family law, there is a presumption that one or both parents should be named managing conservator of a child in an original suit for custody.  If, however, the child’s health or emotional well-being would be significantly impaired, the court may appoint a non-parent if doing so is in the child’s best interest.  This presumption can make it difficult for non-parents to gain custody. A mother recently challenged an order giving her child’s paternal grandparents custody.

She appealed the order that appointed her and the child’s paternal grandparents as joint managing conservators, with the grandparents having the exclusive right to designate the child’s primary residence.  The trial court had issued that order following a petition to modify a 2013 order that granted the grandparents possession and access to the child.

The trial court titled its order “Order in Suit to Modify Parent-Child relationship.”  The court found the child had primarily lived with the grandparents, and they had “had actual care, control, and possession of the child with the voluntary consent of [the mother].”  The court also found the mother had been arrested for Battery and Cruelty to a Child in an incident involving her teenage daughter.  The court found the mother had a history of drug use and instability.  The trial court concluded the mother had relinquished care, control and possession of the child to the grandparents, that appointing her as sole managing conservator or giving her the right to determine the child’s primary residence would significantly impair the child’s physical health or emotional development, and that the modification was in the child’s best interest.

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As COVID-19 began to take hold in the United States, Texas and other states took action to ensure that child possession schedules remained in effect and were followed according to court orders. These actions were effective, and as COVID-19 continues to persist in society, parents have adapted to working within court-ordered possession schedules. Now, however, new issues have surfaced regarding the safety and protection of children who are subject to the court-ordered possession schedules. Continue reading →

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As COVID-19 (Coronavirus) becomes more and more ingrained as a daily part of our news cycle, its ability to affect our day-to-day lives continues. As of Monday, March 16, a total of 48 public school districts plus several religious academies across North Texas have elected to extend spring breaks until March 26 or longer. For many parents this begs the question, what do these school closures mean for my possession schedule?

According to the judges in Dallas County, Collin County, Denton County, and Tarrant County, the Standard Possession Schedule should follow the originally published school calendars, meaning there will be no extensions of time periods for parents who have the Spring Vacation possession due solely to recent changes.

As the situation and precautions surrounding this global pandemic continue to evolve, more questions regarding possession schedules and the potential need for additional childcare if schools remain closed will inevitably arise. Disagreements regarding the custody or possession of a child can be stressful and emotionally charged. We recommend consulting with your attorney regarding any questions concerning selecting substitute pick-up or drop-off locations or establishing alternative schedules before making any decisions with your co-parent or ex-spouse.

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Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order.  The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing.  Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence.  The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence.  The mother petitioned to modify the order, alleging a material and substantial change in circumstances.  She alleged there had been a recent family violence incident involving the father and his fiancée.  She also alleged he had a history or pattern of family violence.  She asked that he be excluded from possession of their daughter.  Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule.  The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am.  They required the mother to reside either at her parents’ home or her own home.  Finally, they ordered that neither parent would provide support to the other.

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