Articles Posted in Child Custody

Published on:

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.

handsIn 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.

Continue reading →

Published on:

sunsetIn 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 →

Published on:

sunriseIn 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.

Continue reading →

Published on:

familyIn 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.

Continue reading →

Published on:

childIn 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.

Continue reading →

Published on:

businessmanIn 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.

Continue reading →

Published on:

jail cellIn a recent Texas appellate decision, a father appealed a divorce decree naming the mother the sole managing conservator of their two kids. The mother had filed for divorce in 2016. When the matter came to trial, the father was serving a 15-year prison sentence for aggravated assault with a deadly weapon and was waiting to go on trial for other issues.

By the time of the trial, their kids were nine years old. At trial, the mother testified that she’d separated from him because of abuse over a period of years. For example, he’d choked her son from an earlier marriage and once thrown her to the ground with a gun to her head and threatened to kill her. The kids were just three and had seen the abuse.

She testified that the kids had seen family violence a lot. Texts were introduced into evidence that also included threats from the father to the mother. An abusive letter from him was introduced. After he was convicted, the mother took the kids to the jail to visit him twice so that they could see he was fine. After the visit, the kids were emotionally affected, and she decided it wasn’t in their best interests to keep visiting him. The kids’ behavior improved after they stopped talking to the father, who the mother believed spoke to them inappropriately, in a way that they could not process.

Continue reading →

Published on:

mother and babyIn a recent Texas appellate case, a mother appealed from a trial court order that limited her possession of her daughter to once a month over one year. The case arose when the Department of Family and Protective Services brought an action for the protection and conservatorship of a couple’s three-year-old daughter. It asked for parental rights to be terminated in its initial pleadings.

The caseworker testified that she’d removed the child from the mother’s custody because there were concerns about the mother’s drug use and mental health, including suicide efforts and about 40 hospitalizations. When removed, the child lived with her maternal grandmother in dirty conditions. The Department put her with a foster family, which was ultimately not able to handle her special needs, including a narrowed esophagus and delayed speech development. She was later placed with her father.

The daughter did well in her placement with the father. Meanwhile, the mother did perform the tasks she was asked to perform by the Department. Accordingly, the Department no longer wanted to terminate her parental rights. The Department asked that the mother and father be named as joint managing conservators, with the father named as the parent who could designate the child’s primary residence. The Department recommended a standard visitation order.

Continue reading →

Published on:

hospitalIn a recent Texas child custody case, the children’s maternal uncle asked the trial court to name him to be sole managing conservator of the kids. The kids’ father, who was joint managing conservator of the kids when their mother died, moved to dismiss the lawsuit on the basis that he couldn’t establish standing to maintain the claim. The court determined that the uncle had failed to present enough evidence to show that the kids’ present situation would significantly harm their health or emotional development, as required by Texas Family Code section 102.004(a)(1).

The mother and father were appointed joint managing conservators of their two kids in 2012, with the mother having the right to designate a primary residence. The mother died of cancer in 2015 when one child was nine and the other was four. The father took over daily care for his kids. Prior to the mother dying, the kids had had significant interaction with the mother’s family, particularly their uncle on that side. After the death, the father refused to bring the kids to visit with the uncle’s cousin and didn’t bring the kids to their mother’s memorial service.

The uncle brought a petition, asking to be sole managing conservator of the kids, and supported it with an affidavit in which the mother had asked that he and his wife care for the kids if she died and in which he stated he and his wife had been actively involved in the kids’ lives. He also claimed that the father hadn’t supported the kids financially, hadn’t been involved with the kids before their mother died, and didn’t provide appropriate emotional support or arrangements.

Continue reading →

Published on:

Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.