Articles Posted in Parental Rights

iStock-839381426-300x200When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children.  A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations.  The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development.  If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest.  Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification.  The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence.  In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children.  He also alleged the mother neglected the children.

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iStock-1033856542-300x200A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated.  Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however.  Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.”  He did not, however, make specific allegations.  The mother argued the petition was time-barred.

Only William testified at the trial.  The mother did not appear or participate.  The trial court found the petition was untimely and denied it.

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iStock-1163040189-300x200When parents cannot cooperate to make decisions regarding the children in a Texas custody case, the court may give one parent certain decision-making rights, even if the parents are joint managing conservators.  In a recent case, a father challenged a court order requiring him to cooperate in the children’s activities and to pay for half of the children’s tutoring expenses.

The parents were named joint managing conservators of the children in the divorce decree with a modified standard possession order. The mother was granted the exclusive right to designate their primary residence and the father ordered to pay child support.  Each parent was responsible for half of any extracurricular activity the parents agreed upon.

Mother Files Modification Suit

The mother petitioned for modification in 2018, seeking the right to make certain decisions after consulting with the father, continuation of certain extracurricular activities, and therapy for the children.  In a counterpetition, the father asked the court to give him the right to designate the primary residence and receive child support.  He also asked that the mother be required to schedule extracurricular activities only while she had the children.

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iStock-1183307633-300x169Generally, when a parent wants to modify the parent-child relationship over the objection of the other parent, they must show the court that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest.  Often, modifications address major issues, such as where the child lives or the amount of child support. Modifications can address a variety of issues, however, including things like which parent makes medical or education decisions or whether a parent can travel with the child.

A father recently challenged a court order allowing a mother to travel internationally with the child.  According to the appeals court’s opinion, the parents were named joint managing conservators of the child when they divorced in 2017.  The mother was granted primary custody.  The following year, the mother petitioned for a modification, requesting the right to get a passport for the child and take her to visit her maternal grandfather in The Gambia.  The father objected and the trial court denied the request.

Mother Leaves Child with Relative During International Trip

The mother went to see her parents in The Gambia in July 2019.  She testified the father did not respond when she notified him she planned to travel, so she left the child with an aunt in Chicago.

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iStock-1033856542-300x200Under Texas family law, a mother’s husband is presumed to be the father of a child born during the marriage.  This presumption can be rebutted by an adjudication of parentage or by a valid denial of paternity filed by the presumed father along with a valid acknowledgement of paternity filed by another person.  Tex. Fam. Code § 160.204. If a child has a presumed father, a suit to adjudicate the child’s parentage may not be brought after the child’s fourth birthday unless an exception applies.  Tex. Fam. Code § 160.607.

Presumed Father Challenges Paternity Adjudication

A presumed father recently challenged a court’s adjudication that another man was the child’s father, arguing the suit was time-barred.  The child was born in May 2014.  The mother and her husband separated that October.  The mother began cohabiting with the alleged father the following October. The mother and her husband divorced in August 2016.  The divorce order provided for visitation by the husband of all four children born during the marriage.

The mother and alleged father got married.  The alleged father petitioned for adjudication of parentage after a DNA test showed a 99.96% probability he was Lucy’s biological father.  The mother’s ex-husband conceded that the alleged father was likely the child’s biological father based on the DNA test.  He argued, however, that the alleged father was time-barred from seeking adjudication of parentage.

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judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225A fit parent generally has the right to determine who has access to the child.  In some cases, however, people other than the parents may seek visitation or even custody of the child.  When someone other than a parent seeks rights in a Texas case, they must meet certain conditions.  In a recent case, a mother challenged a court’s orders granting possession and access to the child’s paternal grandmother.

According to the appeals court’s opinion, the trial court appointed the parents joint managing conservators and gave the father the exclusive right to determine the child’s primary residence.  The teenage parents and child lived with the paternal grandmother for about two years. Several months after the father went to prison, the mother and child moved out.

Mother Files Suit; Grandmother Intervenes

The mother petitioned for modification, seeking sole managing conservatorship.  The grandmother filed a petition in intervention, asking to be named joint managing conservator with the right to determine the child’s primary residence or possession and access in the alternative.

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iStock-1175949984A trial court generally has broad discretion in deciding whether to impose a geographic restriction on the child’s primary residence in a Texas custody case.  A geographic restriction limits where the children’s primary residence may be.  As with other aspects of a custody case, the primary consideration is whether the restriction is in the best interest of the child. A geographic restriction can help ensure the child maintains relationships with the non-custodial parent, extended family, and the community.  In some cases, however, a parent may have good reasons to want to move with the child. The Texas Supreme Court has identified a number of factors in determining whether a move is in a child’s best interest: how it would affect relationships with extended family, how it would affect the non-custodial parent’s visitation and communication with the child, whether a meaningful relationship between the child and non-custodial parent could be maintained with a visitation schedule, the child’s current contact with both parents, the reasons for and against the move, the child’s age, the child’s ties to the community, and the child’s health and educational needs. Lenz v. Lenz.

A father recently appealed an order granting the mother the exclusive right to designate the primary residence without a geographic restriction when the mother intended to move out-of-state with the children.

Mother Offered Opportunity in Arizona

The trial court made several findings of fact. The trial court found the parents moved to Austin so the mother could attend graduate school and intended to stay there until she received her PhD. They had agreed to live there temporarily until the mother got a faculty position at a university.  She earned her PhD in 2012.  The parties’ twin children were born prematurely in 2013, and the mother took time to care for them instead of advancing her career.  During the marriage, she only applied for positions in cities where the father would also have potential job opportunities.  They agreed she should apply for a position in Arizona in 2018, but the job was not filled at that time. The parties separated in February 2019 and the mother continued to be primary caregiver.

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iStock-1147846829Grandparents sometime take on a parental role in the lives of their grandchildren.  In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the  grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children.  The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.

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iStock-483613578A geographic restriction in a Texas custody order helps ensure the parent without physical custody has access to the child, but it can also impose severe limitations on the mobility of the parent with physical custody of the child.  In a recent case, a mother challenged the imposition of a geographic restriction on the child’s primary residence by the trial court after a jury found she should be the child’s sole managing conservator.

Modification Suit Filed After Prior Order

The final divorce decree named the parents joint managing conservators and gave the mother the exclusive right to designate the child’s primary residence within a specific county.  The father later petitioned for modification, seeking the right to designate the child’s primary residence. The mother asked the court to remove the father as a joint managing conservator and name her sole managing conservator with the exclusive rights set forth in Tex. Fam. Code § 153.132, including the right to designate the primary residence.  She also asked for an additional $100 per month in child support.

The jury found the mother should be appointed the sole managing conservator.  No other issues were presented to the jury. The judge’s letter ruling indicated she wanted to place a geographical restriction on the mother’s right to designate the child’s primary residence, but was uncertain of the court’s authority to do so under the circumstances.  The letter ruling stated the court imposed the geographic restriction if both parties’ counsel agreed it could, but not if counsel agreed it could not.  If counsel disagreed as to whether the court could impose the restriction, the court requested they provide authorities on the issue. The trial court denied the modification of the child-support obligation.

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iStock-1147846829A court may generally only modify a Texas custody order if the modification is in the best interest of the child and there has been a material and substantial change in circumstances since the previous order was rendered or the parties signed the settlement agreement. The court may also modify an order if the modification is in the child’s best interest and an older child has told the court his or her preference or if the parent with the exclusive right to designate the child’s primary residence voluntarily gave up primary care or possession of the child for six months or more. Tex. Fam. Code Ann. § 156.101.

In some cases, when one parent seeks a modification, the trial court may instead grant a modification requested by the other parent.  In a recent case, a mother challenged a modification giving the father the exclusive right to designate the child’s primary residence after she had initially moved for a modification to expand the geographic restriction on the child’s primary residence.

Mother Files Modification Suit

Following the parties’ divorce, the mother had the exclusive right to designate the child’s primary residence in one of two counties.  She petitioned for modification eight years later, seeking increased child support and the right to designate the child’s primary residence in one of the counties or any contiguous county.  The father requested the exclusive right to designate the child’s primary residence within that designated county.

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