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Articles Posted in Child Custody

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In some Texas custody cases, the major issue is not the actual custody or visitation.  Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person.  Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner.  A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.

The parents married in 2011 and moved to Austin in 2015.  The mother became pregnant in 2017.  The father became romantically involved with a co-worker.  The father testified he lied to the mother repeatedly to hide the affair.  The daughter was born prematurely and stayed in the neonatal intensive  care unit for five and a half weeks.

Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship.  The mother filed for divorce after she learned of the affair.  She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.

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Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children.  In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent.  In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage.  The mother moved to another town and filed for divorce.  The decree required the father to use a Soberlink alcohol monitoring device before and during visitation.  The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits.  She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity.  She also alleged the father failed one of his alcohol tests.

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A court may modify a Texas custody order only in certain circumstances.  One of the most common reasons to modify an order is that there has been a material and substantial change in circumstances since the previous order and a modification is in the child’s best interest.  Whether a material and substantial change has occurred is a question of fact. The party seeking modification has the burden of proving a material and substantial change has occurred.

In a recent case, a father challenged denial of his petition for modification because he had not been allowed to present evidence to support it.  A 2010 order named the parents joint managing conservators, with the mother having the exclusive right to designate the child’s primary residence.

The child moved in with his father, his paternal grandmother and his step-grandfather following his mother’s death in 2015.  The grandparents filed a petition to modify the 2010 custody order based on the mother’s death, as well as the father’s behaviors they claimed significantly impaired the child’s safety and well-being.  The grandparents asked to be named temporary joint managing conservators with the right to designate the child’s primary residence.  They also asked the father be denied access to the child, or alternatively, that his access to the child be supervised.

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A parent may demand a jury trial in a Texas custody case.  After the jury decides certain foundational issues, the trial court then determines the specific terms and conditions.  The Texas Family Code prohibits the court from contravening the jury’s verdict on certain specified issues, including primary residence. Tex. Fam. Code Ann. § 105.002.

A mother recently challenged a trial court’s possession order on the grounds it contravened the jury’s verdict and was not in the child’s best interest.  The father petitioned to be named joint managing conservator with the exclusive right to designate the child’s primary residence when the child was two months old.  The jury found the mother should have the exclusive right to designate the child’s primary residence within the state of Texas.  Following a bench trial on possession and access, the trial court orally ordered the father would have “week on/week off” possession.

The court issued a final order appointing the parents joint managing conservators with the mother having the exclusive right to designate the primary residence in Texas.  The order also granted the father week-on/week-off possession until the child turned five and started kindergarten.  In August 2022, the father would be subject to a standard possession order.

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Generally, a Texas child custody order can be modified only if the modification is in the child’s best interest, and there has been a material and substantial change in circumstances. Family violence may constitute a change in circumstances warranting a modification.

In a recent case, a mother challenged a modification, alleging that there was insufficient evidence of family violence to support a finding of a change in circumstances. When the child was an infant, the parents entered into an agreed order, appointing both of them as joint managing conservators, with the mother having the exclusive right to designate the primary residence.

The mother was subsequently charged with assaulting the father’s girlfriend.  In December 2016, the mother took the child to California to live with her mother and other children.

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Texas child custody law includes a presumption that a parent will be appointed sole managing conservator or both parents will be joint managing conservators of their children unless a court finds that doing so would significantly impair the health or emotional development of the children. Although it can be difficult for a third party to get custody of a child, it does occur in some cases.  Grandparents and stepparents, in particular, can play significant roles in children’s lives and may want custody.  A father recently challenged an order appointing him, the mother, and the stepfather as joint managing conservators of the child.

The father argued that the stepfather had not rebutted the parental presumption. He argued that the stepfather had to rebut the parental presumption in Tex. Fam. Code Ann. § 153.131(a) to succeed in his petition to modify the prior order.  The appeals court found, however, that the statute and the presumption contained therein only apply to original custody proceedings.  The order at issue was not the original order, but it was instead a modification of the prior order.  The presumption was therefore not applicable, and the stepfather did not have to rebut it at this stage.

The father also argued that the stepfather did not have standing to petition for a modification.  The father argued that Tex. Fam. Code Ann. § 102.004 applied.  Under this statute, a grandparent or another relative may file suit seeking custody if the child’s current circumstances would significantly impair his or her health or emotional development, or if the suit is filed or consented to by the parents or the managing conservator.

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Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met.  First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child.  Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being.  Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child.  TEX. FAM. CODE ANN. § 153.433.

In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children.  The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California.  The grandparents supported the family so the parents could save up to buy the home.  After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight.  The grandparents would take the children to school and attend school functions.  The grandmother testified she felt she had assumed the role of parent.

The grandmother testified both parents were alcoholics.  The mother’s friend testified the parents had a tense and unhealthy relationship.  There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense.  The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies.  He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.

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Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

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Under Texas family law, a child’s parents have certain rights and duties regarding their children, including the right of possession and the right to make certain decisions related to them.  Parents also have the duties to support, care for, and protect their children.  Though in some cases, the parent-child relationship must be established.

In a recent case, a child’s alleged biological father petitioned to establish paternity several years after the child was born. The child’s mother had been married to her husband since 2008.  The child was born in July 2010.  According to the appeals court’s opinion, the mother also had a sexual relationship with the petitioner for about four years, including the approximate period of the child’s conception. The mother told the petitioner he was the child’s biological father during and after the pregnancy.

The husband believed he was the child’s biological father during the pregnancy and for at least the first four years of the child’s life.  The child knows the husband as his father.

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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.

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