Texas divorce cases are never easy, but can become even more complicated when one or both parents have mental health problems. Mental health problems may, but do not necessarily, affect a parent’s competence to testify or participate in the proceedings. Depending on the nature of the mental health problems, they may also affect the parent’s ability to care for the child.
In a recent case, a mother challenged a trial court’s order appointing the father as sole managing conservator. According to the appeals court’s opinion, the husband filed for divorce when the child was just eight months old. The trial court issued a temporary order appointing both parents temporary managing conservators. The father was working in Las Vegas at the time and was granted possession on weekends when he was in San Antonio, with the mother having the child the rest of the time. Both parents were ordered to participate in psychological evaluations.
The court limited the mother’s contact with the child to supervised visits after receiving the psychological evaluations. The child was to live with his paternal grandmother in San Antonio, but granted the father possession when he was in San Antonio.
The mother moved for an indefinite continuance five days before trial. She said she was making progress with her recovery but needed additional time. She also moved for modification of temporary orders. On the day of the trial, her attorney said the mother was ready to address her motions for modification but was not ready to go to trial. The attorney was unable to tell the court how much additional time was needed and the court denied the motion for continuance.
According to the evidence presented, the husband moved to Las Vegas due to a promotion. The wife joined him after the child was born. The husband stated she grew paranoid and violent with him. According to the court’s opinion, she attacked the father at times while he was holding the child. The father contacted the police and the mother was arrested two times. According to the opinion, the mother took the child back to San Antonio on a bus without telling the father she was leaving town.
The mother was diagnosed with schizophrenia and prescribed medication while the divorce case was pending. Her parents stated the medication was making her more focused. However, the mother had only exercised her visitation rights twice in three months.
The court granted the divorce and appointed the father sole managing conservator and the mother possessory conservator. The mother appealed.
The mother argued the court abused its discretion by denying the continuance due to Rule 601 of the Texas Rules of Evidence. Pursuant to Rule 601(a)(1), a witness is incompetent to testify if he or she is “insane” at either the time of the testimony or the time of the events about which he or she would testify. Although the mother had not cited Rule 601 or claimed she was incompetent to testify in her motion, the appeals court stated it would have rejected the argument even if it had been preserved. The court noted that competence to testify is presumed under Rule 601. The burden to prove a witness is incompetent is on the party who asserts incompetence. The mother, therefore, had the burden of proving she was incompetent. To prove a witness is incompetent, the party must prove the witness did not have the ability to perceive the relevant events, cannot recall or describe the events at the time of the testimony, or does not have the capacity to understand the obligation of the oath.
The mother here did not provide specific evidence regarding her competency generally or her ability to perceive, recall, or narrate the events. She also provided no evidence that she was unable to understand the obligation of the oath. The appeals court found no abuse of discretion because the mother did not meet the burden to show she was not competent to testify.
The mother also argued the trial court abused its discretion by making the father the sole managing conservator. Under Texas family law, the court may not appoint the parents joint managing conservators if there is credible evidence of a history of child neglect or physical abuse by one parent against the other. In this case, the court found “credible evidence of a history or pattern of past or present child neglect and physical abuse by” the mother against the child and the father.
There was evidence the mother had not taken the child to the doctor, and he was found to be underweight and have lead in his blood when he was finally examined. There was evidence she had refused to use a car seat at least once. There was also evidence she had hit and pushed the father while he was holding the child, causing him to fall with the child. The father had called the police several times due to the mother’s violence, and she had been arrested twice. The appeals court found sufficient evidence to support the decision.
The court also overruled the other issues raised by the mother and affirmed the trial court’s judgment.
If you are involved with a custody dispute involving mental health problems, a skilled Texas child custody attorney will help you fight for the best possible outcome for you and your child. Call McClure Law Group at 214.692.8200 to schedule a consultation.