Articles Posted in Child Custody

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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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Parties to a Texas divorce or a suit affecting the parent-child relationship may enter a mediated settlement agreement.  To be a binding mediated settlement agreement, the agreement must meet certain statutory requirements.  If it meets the requirements, the agreement is binding and the parties may obtain a judgment on it.

In a recent case, a father challenged a mediated settlement agreement.  After the divorce, the mother petitioned for modification of the parent-child relationship and the parties reached a settlement agreement in 2012.  They reached additional agreements in 2014 and sought to have the trial courts render those agreements into a judgment.  Each party moved to enter an agreed final order, but the proposed orders did not match.  The court signed the father’s proposed judgment, and the mother moved for a new trial.  Before the motion was decided, the parties signed a new mediated settlement agreement (MSA) following another mediation in 2015.  The mother filed a notice of settlement agreement.  A proposed order granting the mother’s motion for new trial and vacating the previous judgment was filed, but the trial court did not sign it.

A few months later, the mother petitioned to enforce the 2015 MSA.  The court granted the mother’s motion to compel arbitration and ultimately rendered the arbitrator’s award into a judgment.

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A Texas custody order can generally only be modified if there has been a material and substantial change in circumstances and if the modification is in the child’s best interest.  Texas courts have developed a non-exhaustive list of nine factors to be considered to determine the best interest of the child.  In some cases, a parent seeks modification because of attempted alienation by the other parent.

In a recent case, both parents sought modification of the original custody order.  Under the original agreed  order, both parents were joint managing conservators, the child lived with the mother, and the father had visitation rights.  The mother had the exclusive right to determine the child’s domicile and direct his education.  The parents shared the right to direct the child’s medical and psychiatric care.  The child was to be transferred for visitation at a designated location.

According to the opinion, the mother began refusing to transfer the child unless a police officer was present.  The father filed suit to change the transfer location to a police department.  The mother petitioned for supervised visitation with the father and to be named the sole managing conservator.  The father sought the exclusive right to determine domicile.

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Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations.  A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period.  TEX. FAM. CODE ANN. § 6.301.  Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent.  For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.

The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding.  According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record.  Both parties testified that they and the children had lived in North Carolina continuously for the previous six years.  The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.

The wife argued Texas did not have subject-matter jurisdiction.  The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas.  The trial court also found the father was not a resident of Kendall County, Texas.  The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce.  The husband appealed.  The appeals court identified two separate issues in this case: the divorce and the custody.

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In Texas custody cases, the best interest of the child is to be the primary consideration.  In Texas, courts may consider a variety of factors in determining what is in the child’s best interest.  These factors include the child’s desires, the child’s current and future physical and emotional needs, any current or future physical or emotional danger to the child, parental abilities of those seeking custody, the programs available to each party, each party’s plans for the child, the stability of the home, any acts or omissions of the parent that could indicate the relationship with the child is not proper, and any excuse for those acts or omissions.  The court is not limited to these factors, nor does it have to consider all of them.

In a recent case, a father challenged a court’s finding that granting the mother the right to determine the children’s primary residence was in the children’s best interest.  The parents’ relationship ended shortly after their twin sons were born in 2011.  The trial court originally appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.  A modification in 2014 gave the father the exclusive right to determine primary residence and allowed the mother access to the children under a schedule.  Pursuant to the order, the mother had the option to pick up the children on evenings the father was scheduled to work later than 10 pm.

The mother petitioned for the right to determine the primary residence in 2016.  She testified the father had his sister take care of the children when he was not available and prevented her from accessing them.  She testified she thought the children lived with their father’s sister.  She argued she could provide them more structure and stability than their father could.

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A Texas court generally cannot modify a custody order or parenting plan unless there has been a material and substantial change in circumstances.  Sometimes, a parent may seek modification because the other parent’s actions have created a change in circumstances.  Texas law provides examples of potential material changes, including marriage of one of the parents, changes in the home surroundings, and mistreatment of the child by a parent or step-parent.  Tex. Fam. Code Ann. § 156.101.

A Texas appeals court recently considered whether a modification allowing the father, rather than the mother, to determine the child’s primary residence was appropriate.  In the Texas divorce, the mother was awarded the family home, which was subject to a mortgage in both names.  The father paid child support.  At the time of the divorce, the child went to daycare while the mother worked, then spent a few hours with the father, and spent the night with his mother.

The mother subsequently started working a night shift.  The child continued going to daycare, but then spent both evenings and nights with the father.  The mother sold the family home to the father and moved into another home with the child’s maternal grandmother.  Soon afterward, she switched to the day shift.  She removed the child from daycare and left him with the grandmother during the day.  The mother then only allowed the father to see the child on the days specified in the divorce decree, and would deny him access to the child if he was late, even by a few minutes.

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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.In 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.

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