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Texas Appeals Court Upholds Denial of Mother’s Petition to Change Custody

It is not uncommon for a non-custodial parent who moves away to seek custody.  To change a Texas custody order, the parent must show that the change is in the child’s best interest and that there has been a substantial and material change in circumstances.  A mother recently challenged the denial of her petition for a change in custody.

The parents divorced in 2014 when the child was four.  The parties agreed in the decree the husband had the right to designate the child’s primary residence, but the mother petitioned for that right in December 2016.

The mother said the child lived with her until she enlisted in the Army in 2015.  According to the mother, the child then alternated between her grandmothers.  The mother remarried in 2016 and moved to Fort Hood.  She continued visiting the child most weekends until she was transferred to Poland for part of 2016.  She now lives in Colorado.

The father testified the mother left the child with him when they separated and she lived with him since.  While he worked out of town for six months in 2016, the child stayed with his mother through the week, but he came home on weekends.  He remarried in 2018 and his wife’s teenage daughters also live with them.

The appeals court’s opinion stated the child changed schools six times since she started pre-K.  The father currently rents a two bed-room apartment and the girls all share a room. The teenage girls share a bed and his daughter has her own bed.  He said they are currently saving to buy a house.

The mother testified she is unlikely to be transferred soon.  She provides health insurance through Tricare and has arranged healthcare appointments for her daughter.  She criticized the father’s lack of involvement with the child’s healthcare and schools.

The social worker believed the mother was better able to meet the child’s medical and emotional needs and could provide more stability.  She testified the child was bonded with both parents.  She was also bonded with her grandmothers, stepmother, and stepsiblings, who all lived in Texas.

The court ordered counseling and did not change the right to determine primary residence.  The mother appealed.

To modify the parent-child relationship, the mother had to show it was in the child’s best interest and that there had been a material and substantial change in circumstances since the divorce decree.  The mother argued the trial court had not followed the guiding principles of determining the child’s best interest.

The appeals court noted that, although the child had moved several times, she had stayed in San Antonio near her family.  She had done well in school with no discipline problems.  The father worked during school hours, but had his mother pick the child up from school most days.  The child’s maternal grandmother ate lunch with her weekly at the school and the child spent a weekend each month with her.

The mother and maternal grandmother stated the child needed counseling and wanted to live with her mother.  The father, his wife, and his mother testified the child was happy and well-adjusted.

According to the appeals court’s opinion, the mother argued the child should live with her because the father was not involved in her medical care and did not know the name of her doctor or dentist.  The father testified the mother wanted to handle the child’s medical care and she was the one with access to the health insurance information.

The trial court had sufficient evidence, based on the testimony, to determine it was in the child’s best interest for the father to have the right to determine her primary residence.

The mother also argued that awarding the father the right to determine primary residence was against the weight and preponderance of the evidence.

The father testified the child had lived with him since before the divorce, except for the brief period he worked out of town. The mother’s testimony contradicted the father’s testimony.

The mother testified she saw the child almost every weekend when she was at Fort Hood and often since she moved to Colorado, but the father testified she had not seen the child often until after she filed the petition.

The fact finder is responsible for determining credibility.  It therefore did not abuse its discretion in not awarding the mother the right to designate the child’s primary residence when there was conflicting evidence.

The mother also argued the trial court erred in excluding evidence that the father was in the U.S. illegally and had forged documents.  The father testified he had an immigration attorney, a tax identification number, and a social security number.  He also testified he filed tax returns.  The court sustained an objection that further questioning was not relevant.

Immigration status is generally not relevant in a civil case or probative of parental fitness.  The appeals court therefore found no abuse of discretion in exclusion of the immigration status evidence.

The appeals court affirmed the trial court’s judgment.

If you are seeking or opposing a custody modification, an experienced Texas custody attorney can help you fight for your children.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

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