Articles Posted in Child Custody

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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.

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Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations.  A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period.  TEX. FAM. CODE ANN. § 6.301.  Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent.  For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.

The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding.  According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record.  Both parties testified that they and the children had lived in North Carolina continuously for the previous six years.  The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.

The wife argued Texas did not have subject-matter jurisdiction.  The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas.  The trial court also found the father was not a resident of Kendall County, Texas.  The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce.  The husband appealed.  The appeals court identified two separate issues in this case: the divorce and the custody.

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In Texas custody cases, the best interest of the child is to be the primary consideration.  In Texas, courts may consider a variety of factors in determining what is in the child’s best interest.  These factors include the child’s desires, the child’s current and future physical and emotional needs, any current or future physical or emotional danger to the child, parental abilities of those seeking custody, the programs available to each party, each party’s plans for the child, the stability of the home, any acts or omissions of the parent that could indicate the relationship with the child is not proper, and any excuse for those acts or omissions.  The court is not limited to these factors, nor does it have to consider all of them.

In a recent case, a father challenged a court’s finding that granting the mother the right to determine the children’s primary residence was in the children’s best interest.  The parents’ relationship ended shortly after their twin sons were born in 2011.  The trial court originally appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.  A modification in 2014 gave the father the exclusive right to determine primary residence and allowed the mother access to the children under a schedule.  Pursuant to the order, the mother had the option to pick up the children on evenings the father was scheduled to work later than 10 pm.

The mother petitioned for the right to determine the primary residence in 2016.  She testified the father had his sister take care of the children when he was not available and prevented her from accessing them.  She testified she thought the children lived with their father’s sister.  She argued she could provide them more structure and stability than their father could.

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A Texas court generally cannot modify a custody order or parenting plan unless there has been a material and substantial change in circumstances.  Sometimes, a parent may seek modification because the other parent’s actions have created a change in circumstances.  Texas law provides examples of potential material changes, including marriage of one of the parents, changes in the home surroundings, and mistreatment of the child by a parent or step-parent.  Tex. Fam. Code Ann. § 156.101.

A Texas appeals court recently considered whether a modification allowing the father, rather than the mother, to determine the child’s primary residence was appropriate.  In the Texas divorce, the mother was awarded the family home, which was subject to a mortgage in both names.  The father paid child support.  At the time of the divorce, the child went to daycare while the mother worked, then spent a few hours with the father, and spent the night with his mother.

The mother subsequently started working a night shift.  The child continued going to daycare, but then spent both evenings and nights with the father.  The mother sold the family home to the father and moved into another home with the child’s maternal grandmother.  Soon afterward, she switched to the day shift.  She removed the child from daycare and left him with the grandmother during the day.  The mother then only allowed the father to see the child on the days specified in the divorce decree, and would deny him access to the child if he was late, even by a few minutes.

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To provide some stability for children, Texas allows for the modification of a conservatorship order only if the modification is in the child’s best interest, and there has been a material and substantial change in the circumstances of the child, a conservator, or another party affected by the order.  Texas law does not provide guidelines as to what qualifies as a material and substantial change.  The party seeking the modification must show the material and substantial change.In a recent Texas child custody case, the mother appealed a modification of the conservatorship order.  When the parties divorced, the trial court appointed both parents as join managing conservators of the two children.  The court gave the mother the exclusive right to designate the primary residence within a specified geographic area.  The father was ordered to pay child support.

About two years later, the mother moved the children to another county within the geographic area.  The Attorney General moved to enforce the support and to transfer venue to the county where the children were living.

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In a recent Texas child custody case, a father challenged the modification of conservatorship of a former couple’s child. The modification allowed the mother to go abroad with their child. The case arose when the mother moved to modify the divorce decree, which had appointed her and her ex-husband as joint managing conservators of the child. The decree didn’t mention the child’s ability to go abroad. In her motion, the mother claimed there was a substantial change in circumstances. Specifically, the mother claimed it was in the child’s best interests to be able to go to the country of the mother’s birth (Kenya) because her grandmother had recently died, and the mother wanted to go visit and go to the memorial service.

The mother asked for temporary orders. She wanted the father to execute a written consent and other forms required for travel, and she also wanted an international travel provision to be added to the final decree.

The father asked the court to deny international travel privileges until their child had reached age 16 or the age of maturity under the Texas Family Code section 153.501. This code section states that if there’s credible evidence showing a potential risk of international kidnapping of a child by a parent, the court can take specific protective measures. Continue reading →

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In a recent Texas child custody decision, a mother petitioned complaining about temporary orders that kept her from removing her three youngest kids from the county or any contiguous county in order to establish the kids’ primary residence.

The father petitioned to modify the parent-child relationship in October, trying to modify the couple’s divorce decree signed in July. The final divorce decree approved and incorporated the couple’s mediated settlement agreement signed by the couple in January. At the time of divorcing, the couple had 15 kids, and six of the kids were minors.

The settlement agreement gave the mother the right to decide the primary residence of the three youngest kids and the father the right to determine the other three kids’ primary residence. The final decree also gave the mother the exclusive right to designate the three youngest kids’ primary residence without regard to geographic location and granted the same right to the father as to the other three minor kids. During this time, the father lived in Burnet County. When the couple entered into the mediated settlement agreement, the mother lived in Amarillo, but she moved to Temple in a county contiguous to Burnet prior to the signing of the final order. The final decree allowed access and possession on the statutory basis provided, due to the couple living within 100 miles of each other.

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In a recent Texas domestic violence decision, the plaintiff appealed from the lower court’s judgment granting his divorce petition. The couple had married in 1999 and had eight kids. After 15 years of marriage, the husband sued for divorce.

At the divorce trial, the primary issue was who should have conservatorship of the eight kids. The parents and a counselor who prepared a social study testified. The father argued there was credible evidence showing that the mother had a history of past or present physical abuse against him and that the lower court was prevented from appointing him and the mother as joint managing conservators. The father also argued the lower court should appoint him sole managing conservator. Alternatively, he argued the lower court should appoint him joint managing conservator with exclusive right to determine their primary residence.

The mother argued that the lower court wasn’t prevented from appointing her and the father as joint managing conservators. The mother also argued that the lower court should appoint her the joint managing conservator with exclusive right to decide the primary residence.

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In a recent Texas child custody decision, the court considered a situation in which the mother was given the exclusive right to designate the daughter’s primary residence within Tarrant County, Collin County, or a contiguous county to the latter. In a modification order, the court gave the father the exclusive right to designate her primary residence within Dallas County or a contiguous county.

The child was born to a married couple in 2008, and they later divorced. The father asked the court to modify the parent-child relationship. The judge issued a memorandum on the same day as the trial but didn’t sign a written order for about a month. The order granted the father’s requested remedy by providing that the daughter’s residence could be established in Tarrant County, Collin County, or a contiguous county to the latter and setting an expanded standard possession order.

The mother appealed this order. Subsequently, the father tried to enforce the order. He claimed the mother hadn’t established their daughter’s home in the appropriate county and inappropriately kept him from the daughter on 17 occasions. At the enforcement hearing, the mother and father told the court they’d come to an agreement. They had agreed the parents would stay joint managing conservators, with the father having exclusive rights to designate the daughter’s primary residence within Dallas or a county contiguous to it. The mother was going to get standard visitation for parents whose own homes are 100 miles from their child’s.

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In a Texas child support decision, a father’s attorney told the trial court the couple had reached an agreement about everything but the father’s child support obligation. His attorney told the court what the terms of their agreement were. These included that the mother would decide the kids’ primary residence, and the father would have standard possession with certain modifications. After deciding the amount of the child support payment, the lower court announced it approved their agreement.

The lower court entered a divorce decree, including the terms that had been announced on the record. The decree had a place for the father to sign indicating consent, but he didn’t sign. He asked for a new trial without an attorney, and when that motion was denied, he appealed without an attorney. He presented five issues.

He argued that the mother had instituted a malicious criminal prosecution against him that adversely affected his negotiations during divorce. He claimed there was newly discovered evidence in the form of his cell phone, which had been in the district attorney’s custody previously as proof in an ongoing criminal investigation.

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