A trial court may modify a Texas child support order if there has been a material and substantial change in circumstances since the rendition of the prior order. The party seeking the modification has the burden of establishing the change in circumstances. The court may also modify an order if it has been at least three years since the prior order was rendered or modified and the order varies by 20% or $100 from the guidelines.  Tex. Fam. Code § 156.401(a).  As with many issues involving child custody or support, the court’s primary consideration should be the child’s best interest.  A father recently appealed a court’s denial of his request to modify his child support obligation due to a change in income.

Petition for Modification

According to the appeals court, the father’s monthly child support obligation under a 2015 agreed order in a modification suit was $1,231.78 and his monthly medical support obligation was $105. There were no findings as to the father’s net resources or any indication in the order that the child support was based on the guidelines.

The father petitioned for modification in October 2021, alleging a material and substantial change in his circumstances based on his income.  He requested a decrease in his child support obligation.  The mother argued that the previous modification agreement had not been based on the child support guidelines.  She further argued that a change in the father’s income did not constitute a material and substantial change in circumstances because there was no indication the parties had relied on the father’s income in setting the child support obligation in the agreed order.

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When a parent is denied court-ordered possession or access by the other parent, the court has discretion to order additional periods of possession or access to make up for that time.  Tex. Fam. Code § 157.168. These additional periods of possession of access must be the same type and duration as what was denied, may include weekends, holidays, and summer, and must happen by the second anniversary of the date possession or access was denied.  A father recently challenged an enforcement order that did not award him make-up time for the time he was denied.

When the parties divorced, the court appointed them joint managing conservators of the children and granted them equal possession and joint authority for decision-making.

Enforcement Action

The father filed an enforcement motion in September 2020, alleging the mother failed to turn the children over to him twice.  He make-up time as well as attorney’s fees and costs.  He subsequently added twelve more alleged violations occurring after his original enforcement motion was filed.  He also alleged the mother did not get his agreement or inform him that the daughter changed schools.

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The U.S. Supreme Court held in Troxel v. Granville that parents have a fundamental right to make decisions regarding the care custody and control of their children.  There is a presumption under Texas family law that being raised by their biological parents is in a child’s best interest. Additionally, Texas law presumes that a fit parent acts in their child’s best interest.  Essentially, it is presumed that a fit parent should decide whether a grandparent should have visitation with the child.   In addition to other requirements, a grandparent seeking possession or access to a grandchild under Tex. Fam. Code § 153.433(a) must overcome that presumption by showing by a preponderance of the evidence that denying visitation would significantly impair the child’s health or emotional well-being.  Tex. Fam. Code § 153.433(a) applies when the grandparent is the parent of the child’s parent who has been incarcerated for the three month period before the petition is filed, has been found incompetent, is deceased, or does not have possession of or access to the child.

A mother recently challenged a trial court’s order granting the paternal grandparents possession of and access to her children, arguing there was no evidence the children’s physical health or emotional wellbeing would be significantly impaired if it was denied.

Grandparents Petition for Visitation

The children’s father sadly died in December 2020.  The appeals court’s opinion described a close relationship between the children and their paternal grandparents before their father’s death.  In fact, the parents and one of the children had lived with the grandparents for more than four years and then moved next door.

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When one spouse transfers property to the other spouse by deed, there is a rebuttable presumption the property was gifted to the other spouse as separate property.  A deed must contain a sufficient description of the property.  In some cases, there may be mistakes or conflicting information in the deed.  When a court interprets a deed, it must determine the parties’ intent as expressed in the deed.  A wife recently challenged a court’s interpretation of a quitclaim deed and the resulting characterization of the property based on a deed that stated the address for one tract of land but the legal description of another.

The husband bought a house and 23 acres and paid off the mortgage before the marriage.  He also sold two of those acres and a mobile home before the marriage. The parties lived in the house on the 21-acre lot after the marriage.  They subsequently bought back the two-acre tract and the mobile home.

Quitclaim Deed

Before he petitioned for divorce, the husband signed a quitclaim deed that stated the address of the 21-acre tract, but the legal description of the two-acre tract.  The quitclaim deed described the property as 2 acres and identified the make, model, and serial number of the mobile home.  The wife asked the court to characterize the 21 acres and house as her separate property based on the quitclaim deed.  She argued the deed conveyed the house and 21 acres to her, but the husband contended that it referred to the two-acre tract and mobile home.

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Under Texas family law, there are several ways to establish a parent-child relationship between a man and a child, including an unrebutted presumption, an acknowledgement of paternity, adjudication of paternity, adoption, or the man consenting to assisted reproduction resulting in the birth of a child.  A mother recently challenged her former husband’s standing to bring a Suit Affecting the Parent Child Relationship (“SAPCR”) and the trial court’s adjudication of him as the child’s father.

The mother gave birth to the child, identified as “Luke” in the appeals court’s opinion, a month after her marriage to “Justin.”  The mother identified another man as the child’s biological father and Justin admitted he was not the child’s biological father.

According to the opinion, the other man’s parental rights were terminated in September 2011 pursuant to an “Order of Termination.”

Justin lived with the child and held himself out to be the child’s father.  The mother gave birth to a daughter, identified in the opinion as “Gracie,” in August 2012. Continue Reading ›

Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.

Surrogacy is the process of a mother carrying a child for a family who can’t conceive. The process can be a godsend for parents who do not have the option of traditional conception. As surrogacy works in Texas, it involves a life-altering event for at least three parties– the intended parents and the gestational mother. Naturally, it is a delicate process with many emotions and moving parts. Surrogacy can be a great option for many reasons- whether the parents are a same-sex couple, medical issues prevent a mother from carrying a baby, or if either parent is concerned about passing down a genetic disorder or defect. For anyone thinking about growing a family through surrogacy, keep in mind that the legal process is just as essential as the biological process. Continue Reading ›

I know what you’re thinking…. “I’m already married; how is it not too late?” Don’t worry; the solution is a postnup! The Texas Family Code allows for couples to enter into a postnuptial agreement (or marital property agreement), which will offer many of the same protections and advantages that a prenuptial agreement offers.

Current Property. At the time of marriage, both spouses often have separate property interests and liabilities that were acquired prior to marriage. Without a prenup, the spouses’ separate property estates often become commingled and indistinguishable from the community estate of the spouses that begins upon marriage, especially if the spouses have been married for a substantial period of time. For example, during marriage, a spouse may inherit a large estate from a relative, gifts, buy a house, sell or trade property, or put separate property money in the same bank account. Although you and your spouse did not execute a premarital agreement, it is not too late to distinguish your separate property in a marital property agreement.

Chapter 4 of the Texas Family Code, Subchapter B, outlines the statutory requirements and guidelines for a marital agreement. Section 4.102 states:

A Court in Houston recently reinforced the importance of honesty and full disclosure during the Collaborative Law process when it found that a husband potentially committed fraud by failing to disclose changing job circumstances. See Rawls v. Rawls, 2015 WL 5076283 (Tex. App.–Houston [1st Dist.] 2015, no pet.).

A husband and wife in Houston chose to use Collaborative Law to complete their divorce proceedings in 2014. They successfully reached a settlement that included provisions for the wife to receive portions of her husband’s bonus over the next few years. Unfortunately, before the settlement agreement was signed, the husband received a job offer, which he failed to disclose to his wife, and he resigned from his job. Full and complete disclosures of such information is a critical part of the Collaborative Law process, because the goal is to make both parties feel safe to make informed decisions.  The Houston Court is currently examining whether the husband committed fraud and breached a fiduciary duty under the Collaborative Law agreement he signed by concealing his job change from his former spouse during the collaborative law process.  Continue Reading ›

Nearly a year after separating, Mandy Moore and Ryan Adams are still trying to negotiate a settlement for divorce. The reason for the drawn out divorce? Alimony. Continue Reading ›

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