Texas Joint Managing Conservators Presumption May Be Rebutted with Credible Evidence of Abuse

Texas family law contains a presumption that it is in children’s best interest for the parents to be appointed joint managing conservators.  If there is credible evidence of a history of child neglect or physical or sexual abuse by one parent against the child the court may not appoint both parents joint managing conservators.  Tex. Fam. Code § 153.004.  In a recent case, a mother challenged the appointment of both parents as joint managing conservators when there were allegations of abuse against the father.

The parents had five children together.  The mother filed for divorce in 2016.  The trial court appointed the parents joint managing conservators of the four minor children and granted the father the right to designate their primary residence.  The mother appealed, arguing the court erred in naming them managing conservators when there was credible evidence of a history or pattern of abuse.  She also challenged the admission of certain evidence and testimony.

The mother argued that testimony from pre-trial hearings, the father’s trial testimony, and his invocation of the Fifth Amendment during discovery constituted credible evidence.  The appeals court found, however, that the trial court had never actually admitted the pre-trial hearing transcripts into evidence and the testimony could therefore not be used to challenge the trial court’s order.

The mother argued the father’s trial testimony constituted a judicial admission of physical abuse.  The father testified the mother was angry with him and jumped on him.  He said she put a pillow over his face and punched his head while trying to smother him with the pillow.  He stated he “threw [her] over the baby gate” and fell on her.  He also said he punched her in the stomach when she kept grabbing and squeezing him. The appeals court noted the father’s statement was not a judicial admission, but may have been a quasi-admission.  A judicial admission requires a formal waiver of proof, which did not occur here.  The father instead made a testimonial statement that may have been contrary to his position, which would be a quasi-admission. A quasi-admission is not conclusive, but is merely evidence.

The appeals court also noted that, even if the father’s testimony was a judicial admission, it would not preclude him from being named a joint managing conservator.  When there is a single act of family violence which the challenged conservator claims occurred in self-defense, the fact finder has the discretion to make a credibility determination.  The trial court had the discretion to determine the incident would not preclude naming both parties joint managing conservators.

The mother also argued the father’s invocation of the Fifth Amendment when interviewed by a Texas Ranger constituted credible evidence.  The father invoked the Fifth Amendment when asked about allegations he sexually abused the children.  The interview was part of an investigation requested by Child Protective Services.  Although fact finders in civil cases may draw reasonable inferences from invocation of the Fifth Amendment, the invocation alone does not constitute credible evidence of abuse.

The appeals court also overruled all of the mother’s evidentiary challenges and affirmed the final divorce decree.  This case shows the importance of presenting credible evidence if there has been a history or pattern of abuse.  Invocation of the Fifth Amendment alone is not credible evidence of abuse, and the other party’s testimony about the incident may not be sufficient.

If you are facing a custody dispute, an experienced Texas custody attorney can work with you to present the evidence needed to get the best possible result.  Call McClure Law Group at 214.692.8200 to schedule an appointment.

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