Articles Posted in Child Custody

Published on:

In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue.  In other cases, however, one parent has moved away and there may be a dispute over jurisdiction.  Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody.  The family lived in South Carolina when the child was born, but moved to Texas a few months later.  They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then.  They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas.  He sought the exclusive right to designate the child’s primary residence.  The Texas court entered temporary orders. The father added a divorce petition.

Continue reading →

Published on:

Texas divorce cases are never easy, but can become even more complicated when one or both parents have mental health problems.  Mental health problems may, but do not necessarily, affect a parent’s competence to testify or participate in the proceedings.  Depending on the nature of the mental health problems, they may also affect the parent’s ability to care for the child.

In a recent case, a mother challenged a trial court’s order appointing the father as sole managing conservator.  According to the appeals court’s opinion, the husband filed for divorce when the child was just eight months old.  The trial court issued a temporary order appointing both parents temporary managing conservators.  The father was working in Las Vegas at the time and was granted possession on weekends when he was in San Antonio, with the mother having the child the rest of the time.  Both parents were ordered to participate in psychological evaluations.

The court limited the mother’s contact with the child to supervised visits after receiving the psychological evaluations.  The child was to live with his paternal grandmother in San Antonio, but granted the father possession when he was in San Antonio.

Continue reading →

Published on:

It can be very difficult for a non-parent to get custody of a child in Texas custody cases.  A presumptive father may, however, have an advantage over other non-parents.  In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”

Continue reading →

Published on:

Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved.  In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child.  Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased.  In 2016, the father’s brother filed suit to be named as the child’s primary conservator.  The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order.  The order gave primary possession to the uncle and periodic possession to the mother.  The uncle had the right to request the mother undergo drug testing once a month.  She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice.  The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive.  If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered.  She alleged the uncle did not make the child available to her during her time.  She sought criminal and civil contempt, additional periods of possession, and attorney’s fees.  She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

Continue reading →

Published on:

The Texas Family Code limits a trial court’s ability to issue temporary orders during a pending suit to modify the parent-child relationship.  The court cannot issue a temporary order designating or changing the designation of the person with the exclusive right to designate the child’s primary residence unless it is in the child’s best interest and the current circumstances would significantly impair his or her physical health or emotional development, the designated person has voluntarily given up primary care and custody, or the child is at least 12 years old and has identified the person he or she prefers to have the right to designate the primary residence.  The court is also prohibited from creating, changing, or eliminating a geographic limitation on the child’s primary residence unless those same conditions are met.

A father recently challenged a temporary court order requiring his children be enrolled in a school district where neither parent lived.

The divorce decree named the parents joint managing conservators of their three children, but granted the father the exclusive right to designate their primary residence with no geographic restriction.  Each parent had the independent right to make decisions about the children’s education.

Continue reading →

Published on:

Stepparents often develop strong bonds with their stepchildren.  It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child.  Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed.  Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed.  Unfortunately, this section only applies if the parent to whom the stepparent was married dies.  It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living.  In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above.  This section is not dependent upon the biological parent being deceased.  Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.”   As with the other section, the six-month period must end within 90 days before the filing.

Continue reading →

Published on:

Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved.  Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples.  In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents.  The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective.  In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child.  Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together.  While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.

Continue reading →

Published on:

In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them.  If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met.  A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.

The parents lived together with the child until the mother moved out of the home.  The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence.  A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.

When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport.  The father requested findings of fact and conclusions of law, then appealed.

Published on:

Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances.  However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.

In a recent case, a father challenged a trial court’s denial of his petition to modify custody.  He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.

The original order was modified in 2015.  In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence.  He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession.  He asked the court to either deny the mother access to the child or to have her access supervised.

Published on:

The dispute in a Texas custody case is usually between the child’s parents.  In some cases, however, other parties may become involved.  In one recent case, the father’s parents got so involved, they intervened in the custody case and the mother filed claims against them.

In 2015, the trial court appointed the mother and father joint managing conservators of their daughter.  The father was given the exclusive right to determine her primary residence.  The daughter primarily lived with her father’s parents and went to school in Santa Fe.  The mother lived in Houston.

The mother moved to modify the order after learning the father had been arrested.  She sought the exclusive right to designate the daughter’s primary residence and requested that the father be denied access or have his visits supervised.

Continue reading →