In Texas custody cases, the best interest of the child is to be the primary consideration. In Texas, courts may consider a variety of factors in determining what is in the child’s best interest. These factors include the child’s desires, the child’s current and future physical and emotional needs, any current or future physical or emotional danger to the child, parental abilities of those seeking custody, the programs available to each party, each party’s plans for the child, the stability of the home, any acts or omissions of the parent that could indicate the relationship with the child is not proper, and any excuse for those acts or omissions. The court is not limited to these factors, nor does it have to consider all of them.
In a recent case, a father challenged a court’s finding that granting the mother the right to determine the children’s primary residence was in the children’s best interest. The parents’ relationship ended shortly after their twin sons were born in 2011. The trial court originally appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence. A modification in 2014 gave the father the exclusive right to determine primary residence and allowed the mother access to the children under a schedule. Pursuant to the order, the mother had the option to pick up the children on evenings the father was scheduled to work later than 10 pm.
The mother petitioned for the right to determine the primary residence in 2016. She testified the father had his sister take care of the children when he was not available and prevented her from accessing them. She testified she thought the children lived with their father’s sister. She argued she could provide them more structure and stability than their father could.
The father denied his children lived with his sister or regularly spent the night with her. He testified his sister lived nearby and was willing to help pick the kids up from school. The father and his sister testified the children had spent the night at the sister’s home in the past when the father had to work late.
The trial court granted the petition. The court found the father had refused to cooperate with visitation and had not informed the mother when he would be working. The court found material and substantial changes in the circumstances of the parents and children and that it would be in the children’s best interest to designate the mother the authority to determine their primary residence.
The father appealed, arguing there was insufficient evidence of a material and substantial change of circumstances to support the modification. The trial court had found there was less structure and stability at the father’s home than at the mother’s home. He lived in a three-bedroom home with the twins, his teenage son, and an unrelated roommate. Another son stayed with him several nights a week.
The father argued there had been no evidence as to the difference between the mother’s home at the time of the previous order and her home at the time of the modification or the effect either had on the children.
The mother had, however, testified she was living in a community rehabilitation facility at the time of the previous order. Since the previous order was issued, she completed probation, started college, married, and moved into a three-bedroom home. Previous case law has established that a change in marital status and residence can constitute a material and substantial change in circumstances. The appeals court found the evidence showed the mother had entered a stable marriage and moved into a stable home since the previous order was issued. The appeals court found the evidence was sufficient to support a finding of a material and substantial change in circumstances.
The father also argued the trial court abused its discretion in finding the change was in the children’s best interest. The appeals court reviewed to determine whether the trial court had a reasonable basis to conclude the modification was in the best interest of the children.
The trial court heard evidence of the mother’s previous problems with drugs and of her probation from 2012 to March 2015 for a drug offense. However, there was also evidence the mother had started college in January 2015 and married in 2016. The mother and her husband live in a home where each child has his own bedroom. She lives 20 minutes from the kids’ school. She attends counseling weekly and works part-time. There was evidence that the mother’s husband is supportive of her sobriety and her relationship with the children. Several witnesses testified that the mother is a good mother.
The father lives in a three-bedroom home three minutes from the school. He lives with a roommate who is not related to the children. The children share a room with their teenage half-brother. Their five-year old half-brother also spends the night three or four nights a week. The father works as the manager of a bar and restaurant, requiring him to stay in Abilene overnight occasionally. There was evidence the father relies on his sister to help with the kids and pick them up from school. She sometimes kept them overnight in the past. Several witnesses, including the mother, testified the father is a good father.
The appeals court found there was sufficient evidence for the trial court to find the change was in the children’s best interest. The trial court had sufficient information to exercise its discretion and the appeals court found no error in how the court applied its discretion.
The appeals court affirmed the trial court’s judgment.
In this case, the court found modifying the order was in the best interest of the children. The significant and material changes in the mother’s circumstances also supported the modification. If you are seeking a modification of your custody arrangement, an experienced Texas custody attorney can help you. Call McClure Law Group at 214.692.8200 to set up a consultation.
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