Published on:

Texas Appeals Court Upholds Custody Modification Based on Family Violence

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.

In the following March, the father filed an emergency motion, claiming that the mother had violated the court’s orders and kept him from seeing the child for the past four months.  The mother returned to Texas with the child.  The trial court issued temporary orders placing the child with the father.

At trial on the father’s motion, there was evidence regarding the mother’s assault on the woman who was now the father’s wife.  The court also heard evidence of violence against the mother’s older daughter, against the father, and against the child.  There was evidence that the child had shown aggressive behavior.

The trial court stated that it found a change in circumstances and that the mother committed family violence.  In the written order, however, the court did not state that family violence formed the basis for the change in circumstances.  The court stated that it found that the material allegations in the father’s petition were true and that the modification was in the child’s best interest. The order named the father the managing conservator.

The mother requested findings of fact and conclusions of law.  She notified the trial court that the findings and conclusions were past due, but this notification was untimely.  The mother appealed, arguing that the trial court abused its discretion in naming the father “Sole Possessory Conservator based on a finding of family violence.”

Generally, for a court to grant a modification, the modification must be in the child’s best interest, and there must have been a material and substantial change in circumstances since the previous order was issued.  The mother argued that there was insufficient evidence to support the implied finding that there was a change in circumstances based on family violence.  She argued that the incident involved the father’s girlfriend while the girlfriend was married to another man and not living with the father. She argued that this person did not meet the definition of family.

The appeals court found, however, that there was other evidence supporting a finding of a change in circumstances.  There was evidence of an incident in which the mother had rear-ended the father.  Although she said that her foot slipped, the trial court could have disbelieved her testimony and found that this incident was evidence of family violence. The testimony of the mother’s daughter that her mother hit her also constituted evidence of family violence, even if the mother disputed her daughter’s claims. There was also evidence of an injury to the child following his time with the mother on one occasion.  The mother claimed that the child hurt himself in a fall, but the trial court could have disbelieved her.

The appeals court also noted that the mother had moved the child to California, depriving the father of visitation.  The original order had a geographic restriction requiring the mother to maintain the child’s primary residence in a specified county or one contiguous to it.  The appeals court found that moving the child to California and depriving the father of visitation was sufficient evidence of a change in circumstances.

The appeals court found that, with all this evidence, the trial court did not abuse its discretion in finding a change in circumstances.

The court remanded to the trial court to recalculate the child support and impose a geographical limitation on the father’s right to designate the child’s primary residence.  The appeals court affirmed the rest of the judgment.

If you are seeking a modification of a custody order due to family violence or another material change in circumstances, a skilled Texas child custody attorney can help you fight for your children.  Schedule an appointment with McClure Law Group by calling 214.692.8200.