Articles Posted in Child Custody

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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.

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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.

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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.

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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.

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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.

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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.

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When one parent wants to move away with the child, the court hearing the Texas custody case must determine whether the move is in the child’s best interest.  In making its determination, the court needs to consider the public policies set forth in the Texas Family Code.  The court may also consider reasons for and against the move, opportunities the move will provide, accommodation of the child’s needs and talents, relationships with extended family, visitation and communication with the noncustodial parent, the non-custodial parent’s ability to relocate, and the child’s age.  The court may also consider the same factors to be considered in determining the best interest of the child generally.

In a recent case, a mother challenged a geographic residency limitation the court placed on the child when she had planned to move.  The mother filed for divorce and asked the court to appoint her as joint managing conservator and give her the exclusive right to designate the child’s primary residence.  The father asked that the parties be appointed joint managing conservators, but also sought the exclusive right to designate the child’s primary residence.

During the marriage, the couple had lived in Cass County.  The child went to pre-K in Cass County, but both parents worked in Bowie County.  After the separation, both parents moved to different areas of Bowie County and the child went to school where his mother lived.

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A change in Texas custody may be justified even when both parents love and care for the child.  A custody modification is appropriate when there is a material and substantial change in circumstances of the parent or child and if the change is in the child’s best interest.  Sometimes, changed circumstances put the non-custodial parent in a better position to provide for the child’s best interests, even if everyone agrees that the custodial parent loves and cares for the child.

A mother recently challenged a custody modification. The parents were originally named joint managing conservators under the divorce decree, and the mother was given the exclusive right to determine the child’s primary residence.  The mother was also granted the exclusive right to receive child support.  The father gained expanded possession rights through subsequent agreements, including a mediated settlement agreement (MSA).  The court set forth the terms of the MSA in a 2015 order.

The father later petitioned for greater periods of possession and the right to make educational and medical decisions.  He also sought the exclusive right to determine his son’s primary residence so his home would be the child’s primary residence during the school year.

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Parenting is hard. Those three words are enough to capture the entire outlook of parenthood from the moment that the sweet child enters the world.

In today’s world, parenting has taken on a number of new issues such as parenting after a divorce, as an unmarried couple; single parenting; and co-parenting. Briefly stated, parenting is hard. According to the National Statistics Unit, in 2016 39.8% of births in the U.S. are by unmarried women. It is important that expecting or current modern parents consult with an attorney who can help guide them through the legal processes of ensuring full legal rights to conservatorship, possession of and access to their child and identifying numerous nuances that are becoming more and more prevalent in this modern era.  Parents today face many challenges that older generations never even dreamed about.

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A custodial parent sometimes wishes to move away following a Texas child custody case.  Although some parents may want to get the child away from the other parent, there are often legitimate reasons for a parent to want to move.  The primary consideration in the litigation of relocation issues is the child’s best interest.  Although the Texas family law statutes do not set forth how a court should determine the child’s best interests, the Texas Supreme Court has stated courts should consider the public policies listed in Tex. Fam. Code Ann. § 153.001.  Texas has a public policy of assuring frequent and continuing contact with parents who act in the child’s best interest.  There is also a public policy to provide a safe and stable environment for the child.  Finally, Texas has a policy to encourage parents to share the rights and duties of raising the child after separation or divorce.

A father recently challenged a divorce decree that allowed the mother to designate the child’s primary residence without regard to location.  The couple’s child was born in June 2011 and they stopped living together as husband and wife in August of the same year.  The mother filed for divorce in 2015, alleging the child’s father had committed adultery.  She also alleged he left her with the intention of abandonment and had stayed away for at least a year.  The trial court named the mother joint managing conservator with the right to designate the child’s primary residence without any geographic limitations.  The court also ordered the father to pay child support.

The father appealed, arguing in part that the trial court abused its discretion by not placing a geographic limitation on the child’s primary residence because the mother planned to move to Colorado.

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