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Texas Appeals Court Upholds Injunction Prohibiting Child Being in Father’s Girlfriend’s Presence

In some Texas custody cases, the major issue is not the actual custody or visitation.  Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person.  Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner.  A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.

The parents married in 2011 and moved to Austin in 2015.  The mother became pregnant in 2017.  The father became romantically involved with a co-worker.  The father testified he lied to the mother repeatedly to hide the affair.  The daughter was born prematurely and stayed in the neonatal intensive  care unit for five and a half weeks.

Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship.  The mother filed for divorce after she learned of the affair.  She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.

The divorce decree permanently enjoined the father from allowing the daughter to be in the presence of his girlfriend or her child until the daughter turned three.

The father appealed, arguing the injunction was an abuse of the court’s discretion.  The mother argued he had not preserved the error by raising the issue in district court.  The appeals court found no evidence the father had objected to the injunction.  The appeals court noted, however, that a complaint about sufficiency of the evidence can be raised on appeal in a nonjury case.

The appeals court noted courts have broad discretion to determine the child’s best interest, which guides determinations of possession and access.  Tex. Fam. Code § 153.254 sets out the factors that a trial court should consider when the child is younger than three.  The appeals court noted the court is required to consider the impact and influence of individuals who would be present during a parent’s possession and the child’s best interest.

The father argued there was no evidence supporting the “restriction or limitation” on his possession of his daughter pursuant to Tex. Fam. Code § 153.193, which provides that any such restriction or limitation may not exceed what is required to protect the child’s best interest.

The father argued he was not a danger to his daughter and there was no evidence supporting the injunction.  The mother argued, however, that he could or would not “disentangle himself” from his girlfriend to take care of his daughter.  There was evidence he texted his girlfriend from the delivery room while the mother was giving birth.  The mother testified she was concerned he did not prioritize the daughter’s needs when his girlfriend was there.  She said she was uncomfortable with the “possessiveness” the girlfriend displayed towards her daughter.  She testified he left several times in the first two days after the daughter came home from the hospital to see his girlfriend, but told her he was going to work or out for air.  He testified he generally worked until about 5:00, but there was evidence he often stayed out until after 8:00 spending time with his girlfriend.  There was evidence of an email from the girlfriend complaining that he spent time with his wife and daughter.

The appeals court pointed out that the trial court had time with the parties and had the opportunity to observe the witnesses.  The appeals court found there was legally sufficient evidence to support the implied finding that enjoining the father from allowing the daughter to be in the girlfriend’s presence was in the child’s best interest.  There was not any evidence in the record supporting the inclusion of the girlfriend’s child in the injunction, however.  The appeals court found including the child in the injunction was an abuse of discretion.   The appeals court reversed the part of the decree that enjoined the father from letting his daughter be in the presence of his girlfriend’s child, but affirmed the part enjoining him from letting the daughter be in his girlfriend’s presence.

If you are involved in a custody dispute, you need a skilled Texas  child custody attorney on your side.  Call McClure Law Group at 214.692.8200 to set up a consultation.