Articles Posted in Child Custody

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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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In 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.

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In 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.

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In 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.

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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.

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In a recent Texas appellate case, the court considered an appeal of a divorce decree. The father challenged the part of the trial court’s order that determined deviating from a standard possession schedule was in his children’s best interest. The trial court had ordered he have access to the kids on Saturdays from 10-6 every other week.

The case arose from a couple’s second marriage to each other. They were first married in an arranged marriage in India and then moved to the United States. Before their first child was born, the father left. The father wasn’t a United States citizen and went back to India during their separation. He communicated with the baby through Skype.

The mother got a default divorce, and a standard possession order was put in place. She later testified she didn’t mind this because the father was in India anyway. He visited in 2012 and gave his child a birthday gift. The couple got remarried. The father claimed he remarried the mother because he loved the child and felt he had to remarry her if he wanted to be in his daughter’s life. The mother testified she’d remarried him because he’d promised not to leave her again.

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Yes, step-parents could have standing to bring a claim under Texas Family Code Section 102.003(11), often referred to as the “step-parent” statute.  Under this statute, a custody suit may be brought by “[a] person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.”  In other words, if the biological parent who is married to the step-parent dies, then the step-parent might have standing to pursue conservatorship, possession, of and access to the child.

This statute specifically gives rights to a step-parent who has helped raise one or more children of the parent who dies so long as the children have resided with the step-parent and deceased parent for at least six months ending not more than 90 days prior to the date of the filing of the petition. In determining whether or not the step-parent has standing, the court must determine whether the child’s principal residence was with the step-parent and deceased parent.  The Court will look at the following factors when determining whether the residence was a “principal” residence of the child: (1) whether the residence is a fixed place of abode, (2) whether the residence was occupied or intended to be occupied consistently over a substantial period of time, and (3) whether the residence was permanent rather than temporary. In re Kelso, 266 S.W.3d 586, 590 (Tex.App.—Fort Worth 2008, orig. proceeding); Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.—El Paso 2002, no pet.). If the court reviews these three factors and determines that the child does have a principal residence with the step-parent and that such residency existed for a period of at least six months ending not more than 90 days before the date of filing of the petition, then standing is established for that step-parent.

After standing is established, there could be an addition hurdle for the step-parent if he or she is filing an original conservatorship suit, and that hurdle is known as the “parental presumption.” On the other hand, while the Texas Family Code imposes a “parental presumption” in original suits for parents over third parties seeking conservatorship, no such presumption applies to a modification suit filed by relatives or third parties, such as step-parents, who make a request to modify conservatorship, possession, or access. See In re V.L.K., 24 S.W.3d 338 (Tex. 2000).  Therefore, depending on the type of claim that is brought, a step-parent could have a higher burden.  If the step-parent is filing an original suit – then he or she may have to overcome the “parental presumption” and prove that the surviving parent is unfit in order to have certain rights.

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A pattern of family violence can have a significant impact on custody issues in Texas. In Interest of DM, a Texas appellate court considered the impact of family violence in determining who should be managing conservator for children.

The father and mother appealed from the trial court’s order related to their parent-child relationship to three of their four children. They argued there was insufficient evidence to support a finding that having a joint managing conservatorship over the three children would impair their emotional development or physical health.

The couple’s first child was born in 1998, and the second was born two years later. When they were six and eight, their parents started using methamphetamine, sometimes while the kids were in the house and on a daily basis. The mother was diagnosed with bipolar disorder and tried to kill herself six times, blaming the father and wanting the kids to know this.

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In Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

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In Interest of W.B.B. considered a request for contempt findings against a Texas mother. The parents of a child had divorced in 2010. The parents were named joint managing conservators of their child, and the father had the right to designate his residence. The couple agreed to multiple mutual injunctions.

Among other injunctions, their divorce decree incorporated a morality clause agreement that prevented both the mother and the father from permitting anyone with whom she or he was romantically involved to stay overnight while the couple’s son was with her or him. The injunction was to expire in 2015 when the son turned eight, or when one of the ex-spouses remarried, whichever event happened first.

The father remarried in 2013, and the son’s eighth birthday was in 2015. The father moved to modify the divorce decree. The couple reached a mediated settlement agreement that the court incorporated into its order granting the motion to modify the original agreement. The order allowed the father to designate the child’s primary residence and also kept the morality clause in effect with the exception that it would be void if the mother remarried before the child turned eight, and this would be the material and substantial change in circumstances. The mother’s child support obligation would increase to be in line with the Texas Child Support Guidelines, the mother would have to reimburse the father for their child’s health insurance, and the mother would need to notify the father of the remarriage if it happened before the child turned eight. The parents were also prohibited from coming within 50 feet of each other, interfering with the other’s job, and doing other things.

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