Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances. However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.
In a recent case, a father challenged a trial court’s denial of his petition to modify custody. He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.
The original order was modified in 2015. In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence. He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession. He asked the court to either deny the mother access to the child or to have her access supervised.
The mother asked the court to order the parties to exchange the child at a neutral public place and only communicate through a co-parenting website.
The trial court ultimately found there was not a material and/or substantial change since the order was signed. The father appealed.
The father argued there were several circumstances supporting the existence of a material and substantial change. He identified the mother’s marriage, changes in both parents’ living arrangements, alleged threats against the child by the mother’s former boyfriend, alleged mistreatment of the child and family violence by the mother, and alleged denial of the father’s possession.
He argued the mother’s statement in her counter-petition that the circumstances had materially and substantially changed was a judicial admission. If a statement constitutes a judicial admission, the court or jury must accept it as true. A statement within a pleading can be a judicial admission, but only if the pleading is live. Statements within a superseded or abandoned pleading cannot constitute a judicial admission. The mother dropped her counter-petition, so a statement in it could not form the basis of a judicial admission. The father therefore had to prove a material and substantial change.
Although there was evidence of the mother’s marriage, there was no evidence the marriage harmed the child. Marriage alone does not necessarily constitute a material and substantial change. The mother testified the marriage had positive effects on the child and the appeals court found no abuse of discretion in the court’s finding.
The father also argued the parents lived together when the previous order was signed, but the mother was living with her new husband at the time of the trial. Courts consider several factors when determining if a move is a material and substantial change including the distance, the relationship between the child and the non-custodial parent, and whether relocation would deprive the other parent of access to the child.
The mother testified her new home was near her previous condominium. She had changed preschools but testified both parents decided to change due to decreased care and increased fees. The appeals court found no abuse of discretion in the trial court’s finding. There was no evidence showing the changed living arrangements altered the child’s needs or adversely affected his circumstances or relationships with his parents.
In considering the alleged abuse and mistreatment, the appeals court also found no abuse of discretion in the trial court’s finding. There was conflicting testimony regarding the incidents as the preschool director testified she did not have the impression the mother abused or neglected the child.
The appeals court noted the trial court was in the best position to make credibility determinations and deferred to its resolution of conflicting evidence. The appeals court therefore overruled the father on the allegations of abuse. The appeals court also made a similar finding regarding the father’s allegations of family violence and denial of time with the child.
The father also alleged threats by the mother’s previous boyfriend constituted a material and substantial change. To show a material and substantial change, however, the party must establish the circumstances at the time of the prior order and those at the time of trial. According to the testimony, the mother was no longer dating the man who allegedly made the threats, thus, this was not a material and substantial change in circumstances.
The father alleged the trial court abused its discretion in naming the parents joint-managing conservators. He argued that Texas Family Code section 153.004 prohibits the court from appointing joint-managing conservators when credible evidence of abuse or neglect against the other parent, a spouse, or the child has been presented. There was, however, conflicting evidence regarding the incidents cited by the father as previously stated, so the appeals court again found the trial court determined credibility and reasonably could have found the evidence was not credible and/or did not show a history or pattern of abuse.
The father also argued the trial court abused its discretion in failing to render a possession order in his favor due to the statute limiting access to the child if there is a history or pattern of family violence. The appeals court again found the trial court was within its discretion to determine the credibility of the evidence.
The appeals court therefore affirmed the trial court’s final order.
This case shows the importance of showing how the changed circumstances affect the child in any effort to modify a custody arrangement. The Texas custody attorneys at McClure Law Group have a thorough understanding of all custody matters. If you are seeking or fighting a modification, call us at 214.692.8200.
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