Texas Divorce Attorney Blog
A court may grant a Texas divorce based on cruel treatment of one spouse toward the other if it “renders further living together insupportable.” “Cruelty” has been defined in Texas case law as an act endangering or threatening “life, limb or health. . .including. . .any infliction of mental pain or anguish.” Daughtry v. Daughtry. A father recently challenged the decree granting a divorce on the ground of cruelty.
According to the appeals court, the parties married in Cameroon and moved to the U.S. The mother and older child moved to Washington, D.C. while the mother was pregnant with the younger child.
The father petitioned for divorce in December 2022. The mother argued D.C. should have jurisdiction as the children’s home state. The district court found Texas was the older child’s home state, but left the question of jurisdiction over the younger child to a D.C. court. The D.C. Court determined it had jurisdiction and awarded sole custody of the younger child to the mother.
In the Texas case, the mother asked to be named sole managing conservator of the older child. She alleged the father had engaged in a history or pattern of family violence. She also asked that the father be denied access or be limited to supervised possession and access.
The mother testified the father became physically abusive, even in front of other people. She said he threw plates at her when they managed a restaurant in Cameroon. She said the father grabbed her, dragged her down the stairs, and choked her until the older son jumped on him and asked him to stop in 2020. She told of another incident in April, 2021, when he grabbed her by the neck, slapped her, and strangled her. She said he told her in April 2022 that he had a gun “and one day I’m going to use it on you.” She said he later dragged her out of the car, knowing she was pregnant, and threatened to run over her. She left with the older child that night.
She thought both children should be on the same schedule. She did not think the older child would be safe if the father had unsupervised access. She also said the father had not talked to the older child since 2022.
The mother’s friend also testified about the parties’ relationship and the day the father threatened to shoot the mother.
The father testified he and the mother disagreed about the older child’s education and other parenting matters. He said he paid for private school, involved the child in activities, and took care of him when the mother was not available. He testified he wanted both children to live with him and was appealing the D.C. custody order.
The father denied any violence against the mother. He denied the incident in April 2021, but acknowledged he received a citation for assault by contact after the mother contacted the police. He also said the police “suggested” he stay out of the house for 24 hours and he did. He also denied threatening to shoot the mother.
The court dissolved the marriage on the ground of cruelty and named the mother the sole managing conservator of the older child. The court found the father had a history or pattern of committing family violence and granted him restricted access to the older child under the supervision of the D.C. Superior Court Supervised Visitation Center. He was also ordered to pay child support.
The Father’s Appeal
The father appealed, arguing the trial court abused its discretion by granting divorce based on cruelty, not naming both parents joint managing conservators, deviating from the standard possession order and ordering supervised possession and access, and order child support greater than the guidelines.
Cruelty
The father argued the mother had not shown his treatment of her made living together insupportable. He argued the mother had not testified he had impaired her health, caused mental pain and anguish, or resulted in her seeking medical or mental health treatment. He also argued she had not testified that the behavior caused her to leave the marriage.
The mother, however, answered affirmatively when asked if her marriage ended because of family violence. A rational factfinder could find the father committed physical and mental abuse rendering the marriage insupportable based on the testimony of the mother and her friend. The appeals court concluded there was sufficient evidence to support a finding of cruel treatment rendering living together insupportable.
Conservatorship, Possession, and Access
The father also argued the trial court abused its discretion in not naming both parents joint managing conservators. There is a rebuttable presumption that appointing both parents joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131(b). A finding of a history of family violence rebuts the presumption. Furthermore, if there is credible evidence of a history or pattern of physical abuse in the two years before the case was filed or while it was pending, the court may not appoint the parties joint managing conservators. Tex. Fam. Code § 153.004. The court can only name the parents joint managing conservators if doing so is in the child’s best interest. Tex. Fam. Code. § 153.134(a).
There is also a rebuttable presumption the standard possession order is in the child’s best interest. Tex. Fam. Code § 153.252. In cases where the standard possession order is “unworkable or inappropriate,” the court may consider certain factors. The court must consider family violence in determining any restrictions or limitations on possession. The court may not allow access if a preponderance of the evidence shows a history or pattern of family violence in the two years before the suit was filed or while it was pending. A court may allow access, however, if it finds doing so would not endanger the child’s health or emotional welfare and would be in their best interest and if it designs the order to protect the child’s safety and well-being and that of anyone else who was the victim of the parent’s family violence. The court may require supervision. Tex. Fam. Code § 153.004.
The trial court found there was credible evidence to rebut the presumption of joint managing conservators. The court also found that naming the father sole managing conservator or as a conservator with the exclusive right to determine the child’s primary resident was not in the child’s best interest. The court made a number of findings related to possession and access. It found the father had a history or pattern of family violence in the two years before suit was filed. The court found it was not in the child’s best interest for the father to have unsupervised possession or access, but that supervised access would not endanger the child’s health or emotional welfare. The court further found the supervised possession periods it ordered were in the child’s best interest and mirrored the possession periods ordered by the D.C. court for the younger child.
The appeals court found there was sufficient evidence to support the court’s findings. The finding of family violence rebutted the joint managing conservators presumption and prevented the court from naming both parents joint managing conservators.
There was other evidence supporting a finding joint managing conservators was not in the child’s best interest. The father testified they argued about child-rearing decisions. There was significant geographic distance. The appeals court found no abuse of discretion in the court not appointing joint managing conservators.
The finding of family violence also rebutted the standard possession order presumption. Upon the finding of family violence, the trial court had to design the possession order to protect the child’s safety and well-being, as well as that of the mother. Tex. Fam. Code § 153.004(d-1)(2). The appeals court found no abuse of discretion in the deviation from the standard possession order and the supervised visitation.
The appeals court also found no abuse of discretion in the amount of child support ordered.
Seek Legal Representation
Abuse and cruel treatment can have significant effects on a divorce and custody. If you are considering a divorce, a knowledgeable Texas divorce attorney can review your case and advise you on whether cruelty or other fault-based grounds may apply in your case. Set up a consultation with McClure Law Group by calling 214.692.8200.