Articles Posted in Child Custody

In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence.  Tex. Fam. Code § 153.009(a).  The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest.  Tex. Fam. Code § 153.009(c).  Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it.  In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

Continue Reading ›

If the parties in a Texas custody case reach a Mediated Settlement Agreement (“MSA”), the court must enter judgment on the MSA.  The MSA is binding if it meets the three requirements set out in Tex. Fam. Code § 153.0071(d).  First, it must prominently state that it is not subject to revocation. It must also be signed by the parties.  Finally, it must also be signed by any party’s attorney who is present at execution.  The court may, however, decline to enter judgment on an MSA if it finds that a party was the victim of family violence which impaired their ability to make decisions and that the agreement is not in the best interest of the child.  Tex. Fam. Code § 153.0071(e-1). Unless this exception applies, the trial court generally does not have the discretion to deviate from the MSA and a party is entitled to judgment on the MSA.  A court’s order may include terms that are necessary to implement the MSA, but it may not substantially alter the MSA. A father recently challenged a divorce decree that did not compart with the parties’ MSA with regards to where exchanges were to occur.

Mediated Settlement Agreement

The parents had two children together during their marriage. They separated in 2020 and signed an MSA in October 2021.  Pursuant to the MSA, the parents would be joint managing conservators and the mother would have the right to determine the children’s primary residence.  The MSA further gave the father a standard possession order which would be an expanded standard possession order if he lived within 50 miles of the children.  It also provided that the exchange location would be at a particular McDonald’s in Huntsville with a pickup time of 8 p.m. and a drop-off time of 5 p.m. as long as the father and children lived in the current locations, with provisions for changing the location if the parents lived in the same county.

At the hearing, the mother’ attorney claimed that the MSA was intended to state that the parties would only meet in Huntsville once a month instead of for all the exchanges. The father’s attorney argued, however, that the provision stated what the father wanted with regard to exchanges.

Continue Reading ›

A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest.  Tex. Fam. Code § 156.101.  A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation.  He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

Continue Reading ›

A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019.  The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence  as well as other exclusive rights.  The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision.  The mother did not appear at the hearings, and the court granted the requested order.

Continue Reading ›

Fit parents have a fundamental right to make decisions regarding child rearing pursuant to Troxel v. Granville.  A non-parent requesting possession or access must establish that they have standing pursuant to the Texas Family Code or the court must dismiss their suit.  Pursuant to Tex. Fam. Code 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denial of possession or access to the child would significantly impair the physical health or emotional well-being of the child.  This allegation and supporting facts are required for the grandparent to show they have standing.

Grandmother’s Petition

A grandmother recently appealed a trial court’s dismissal of her petition for possession or access to her grandchild.  The paternal grandmother had filed suit for possession or access to her deceased son’s child. Because there was no testimony at trial, the appeals court recited the facts as alleged in the grandmother’s petition and affidavit.   The child was born in April of 2020.  Although the child lived with her mother at the time of the appeal, the grandmother alleged the child lived with her for the first seven months after she was born.

In her affidavit, the grandmother alleged the mother was an “unfit parent.”  She stated one of the mother’s friends had molested the mother’s older daughter.  She also stated in the affidavit that the mother left the child with her when the child was two weeks old, but later claimed the grandmother had kidnapped the child.  The grandmother stated she returned the child to avoid prosecution.  The grandmother claimed the mother had been unable to provide for her older child before her younger child was born and that the mother had been physically and mentally abusive to the older child.  The grandmother also stated that the mother was not able to make a “significant contribution” to the child’s upbringing.  The grandmother averred that the mother had once given the child “spoiled formula” and that she was not “properly bathed” at times.  The grandmother also claimed she was better able to take care of the child financially.

Continue Reading ›

The relief granted by a court generally must conform to the pleadings of the parties, unless the parties consent to try an issue that was not included in the pleadings.  In a recent Texas custody case, a father appealed a court order that he argued not only did not conform to the pleadings, but was also contrary to the court’s findings and not supported by evidence.

The parents lived together for the first two years of the child’s life, but did not get married.  The child lived with the mother after they separated.

The father petitioned for appointment as joint managing conservator with the exclusive right to designate the child’s primary residence.  He also requested a geographic restriction.  Pursuant to a mediated settlement agreement (“MSA”), the court issued temporary orders appointing both parents joint managing conservators with the mother having the exclusive right to designate the child’s primary residence in Fannin and contiguous counties.  The temporary orders also gave each parent the right to consent to medical treatment and education, subject to the other parent’s consent.  The parents shared visitation under the temporary orders, alternating weeks with the child.

Continue Reading ›

Texas custody orders commonly include geographic restrictions limiting a parent’s ability to relocate the children outside a specified area.  Regardless of whether there is a geographic restriction, a parent may seek to prevent the other parent from relocating with the children, often through modification of the custody order to either modify or add a geographic restriction or to change the parent with the exclusive right to designate the children’s primary residence.  A mother recently challenged a modification giving the father the right to establish the children’s primary residence after she provided him notice of her intent to move to another county.

According to the appeals court’s opinion, the parties were appointed joint managing conservators with equal possession in the agreed final divorce decree.  The mother was awarded the exclusive right to establish the primary residence for their two children, with a geographic restriction.

Pursuant to the decree, the mother could move the children to Harris or Dallas County if she provided the father six months’ notice of her intent to relocate and if the father successfully “secure[d] a transfer in employment” to that county.  She notified him in 2020 that she intended to move to Harris County.

Continue Reading ›

In some circumstances, a court may order supervised visitation in a Texas custody case if necessary to protect the child’s health and safety.  Supervised visitation allows the parent and child to maintain their relationship, while protecting he child’s safety.  A father recently appealed a modification order requiring him to comply with certain conditions, including supervised visitation.

In the parents’ final divorce decree, they were both appointed joint managing conservators of the children.  The mother was awarded the exclusive right to designate the residence of the children within a specified county.  The decree required the father to maintain a Soberlink subscription, attend Alcoholics Anonymous, and have supervised visitation.

The trial court modified the parent-child relationship after finding the father was in contempt of the decree in January 2021. The modification order required the father’s visitation to be supervised in accordance with the conditions set out in the order.  He was required to have an “adult assistant/babysitter present” who stayed within line of sight and hearing of the father and children any time he had possession.  The assistant/babysitter was required to stay within line of sight and hearing of the father and children.  The parties were to mutually agree upon the assistant/babysitter, or the court would designate one.  The court stated its ruling resulted from the contempt finding.

Continue Reading ›

The court’s primary consideration in determining Texas custody is the best interest of the child.  Tex. Fam. Code § 153.002.  There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest.  Tex. Fam. Code § 153.131.  When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence.  Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence.  A father recently challenged the custody, child support, and property division in his divorce.

Custody

The parties separated after fourteen years of marriage.  They had two children together.  The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.”   The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed.  She testified she thought it was in the children’s best interest to live with her.  She alleged the father drank too much around the children.

Continue Reading ›

Texas family law has a rebuttable presumption that it is in the child’s best interest for the parents to be appointed joint managing conservators.  Additionally, generally a parent must be named sole managing conservator or both parents named joint managing conservators unless there is a finding such appointment would not be in the child’s best interest because it would significantly impair the health or emotional development of the child.  Tex. Fam. Code 153.131.

A maternal great-grandmother recently appealed a modification appointing the father sole managing conservator.

According to the appeals court’s opinion, the parents’ divorce decree in 2016 had named the mother sole managing conservator and the father possessory conservator.  A subsequent order appointed both parents temporary joint managing conservators, but gave the great-grandmother sole possession.  A subsequent order in 2019 named the mother and great-grandmother joint managing conservators with the great-grandmother having the exclusive right to designate the child’s primary residence.  The order stated the father had failed to appear at trial and defaulted.  He was appointed possessory conservator.

Continue Reading ›

Contact Information