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.
The father objected to the transfer because the children had not lived in the new county for six months. He also sought a modification because the mother’s fiancé had moved in with the mother and children. The father argued the mother let people in her home who were a danger to the children. He was granted a temporary restraining order that prohibited the mother with leaving the children with her fiancé or others with “questionable character.”
The court subsequently entered temporary orders that kept both parents as joint managing conservators but restricted the mother’s right to move the children outside the two counties where they had lived. The court subsequently amended the order to give the father the exclusive right to establish the children’s domicile within those same two counties. The court also terminated the father’s child support and ordered the wife to start paying child support.
The mother subsequently filed a counter-petition to have the order modified, arguing that the circumstances of the children, their conservator, or another party affected by the order had materially and substantially changed since the date of the order.
The court ordered that the parents would keep serving as joint managing conservators. It also gave the father the exclusive right to establish domicile in the original county. It also ordered the mother to pay child support. There were a number of additional requirements.
The mother appealed, arguing the court’s finding of a material and substantial change in circumstances was not reasonable and not supported by sufficient evidence. In her counter-petition, however, the mother had argued that there had been a material and substantial change in circumstances. The father argued, and the appeals court agreed, that she could not now argue that there was no material and substantial change after asserting that such a change existed in her counter-petition.
The appeals court also considered whether the modification was in the children’s best interest. There was evidence that the father had changed his employment since the divorce. He was earning more money and had hours that gave him flexibility to care for the children. He is the primary caregiver for his older children. A number of people testified that he was an excellent father, good employee, and generally dependable person. The witnesses also testified the children were happy, and they did not have concerns about their well-being.
The mother argued the children got lice while with their father, but he disputed this assertion. He testified the children were healthy, but he had taken his daughter to the doctor because she had trouble gaining weight. He said they were doing well in school and engaged in outdoor and church activities together.
There was also testimony that the mother had moved five times and had multiple jobs since the divorce. The appeals court stated that she made misrepresentations in her affidavit and that she had falsely claimed her daughter indicated she had been sexually assaulted in her father’s home. There was evidence she had let her father live in her home in violation of court orders. She admitted to being drunk while caring for her other child and while driving with the child. She admitted she had given false testimony in an unrelated hearing.
The appeals court found there was no abuse of discretion in the order appointing the father as joint conservator with the right to determine domicile.
If you are facing a child custody issue, you need an experienced Texas child custody attorney on your side. Call McClure Law Group at 214.692.8200.
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