Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Upholds Injunction Prohibiting Child Being in Father’s Girlfriend’s Presence

Published on: March 11, 2020 | by Kelly McClure

In some Texas custody cases, the major issue is not the actual custody or visitation. Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person. Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner. A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.

The parents married in 2011 and moved to Austin in 2015. The mother became pregnant in 2017. The father became romantically involved with a co-worker. The father testified he lied to the mother repeatedly to hide the affair. The daughter was born prematurely and stayed in the neonatal intensive care unit for five and a half weeks.

Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship. The mother filed for divorce after she learned of the affair. She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.

Texas Appeals Court Upholds Disproportionate Property Distribution

Published on: February 19, 2020 | by Kelly McClure

Property division in a Texas divorce must be just and right. In some cases, courts may determine that a disproportionate division of the community assets is just and right. In dividing the property, courts may consider a number of factors, including the ages of the parties and their relative physical conditions, their abilities, their education and business opportunites, and the size of their separate estates. The court may also consider fault, but may not punish a spouse through the property division. In a recent case, a husband challenged the disproportionate division of property awarded to the wife.

The parties separated after the husband was fired from his nursing job for failing to take a drug test. The wife testified she lived with the husband’s mother during the separation. She testified she withdrew funds from their joint checking accounts because the money was being used for drugs and gambling. According to the appeals court’s opinion, the husband was banned from his mother’s home and ordered to have no contact with the wife or their children by an Arkansas court.

The wife petitioned for divorce and asked to be awarded a disproportionate share of the community assets. The trial court ordered the husband to vacate the home. There was evidence the husband broke into the home and caused damage to the home and personal property.

Texas Possession Order Can’t Contravene Jury Verdict on Primary Residence

Published on: January 15, 2020 | by Kelly McClure

A parent may demand a jury trial in a Texas custody case. After the jury decides certain foundational issues, the trial court then determines the specific terms and conditions. The Texas Family Code prohibits the court from contravening the jury’s verdict on certain specified issues, including primary residence. Tex. Fam. Code Ann. § 105.002.

A mother recently challenged a trial court’s possession order on the grounds it contravened the jury’s verdict and was not in the child’s best interest. The father petitioned to be named joint managing conservator with the exclusive right to designate the child’s primary residence when the child was two months old. The jury found the mother should have the exclusive right to designate the child’s primary residence within the state of Texas. Following a bench trial on possession and access, the trial court orally ordered the father would have “week on/week off” possession.

The court issued a final order appointing the parents joint managing conservators with the mother having the exclusive right to designate the primary residence in Texas. The order also granted the father week-on/week-off possession until the child turned five and started kindergarten. In August 2022, the father would be subject to a standard possession order.

Texas Appeals Court Affirms Order Naming Stepfather as Child’s Joint Managing Conservator

Published on: December 25, 2019 | by Kelly McClure

Texas child custody law includes a presumption that a parent will be appointed sole managing conservator or both parents will be joint managing conservators of their children unless a court finds that doing so would significantly impair the health or emotional development of the children. Although it can be difficult for a third party to get custody of a child, it does occur in some cases. Grandparents and stepparents, in particular, can play significant roles in children’s lives and may want custody. A father recently challenged an order appointing him, the mother, and the stepfather as joint managing conservators of the child.

The father argued that the stepfather had not rebutted the parental presumption. He argued that the stepfather had to rebut the parental presumption in Tex. Fam. Code Ann. § 153.131(a) to succeed in his petition to modify the prior order. The appeals court found, however, that the statute and the presumption contained therein only apply to original custody proceedings. The order at issue was not the original order, but it was instead a modification of the prior order. The presumption was therefore not applicable, and the stepfather did not have to rebut it at this stage.

The father also argued that the stepfather did not have standing to petition for a modification. The father argued that Tex. Fam. Code Ann. § 102.004 applied. Under this statute, a grandparent or another relative may file suit seeking custody if the child’s current circumstances would significantly impair his or her health or emotional development, or if the suit is filed or consented to by the parents or the managing conservator.

Texas Divorce Court May Clarify Latent Ambiguity in Divorce Decree

Published on: November 27, 2019 | by Kelly McClure

Parties sometimes realize they have different understandings of a Texas divorce decree. The trial court may issue a clarifying order if the decree is ambiguous. In some cases, the decree may be facially unambiguous, but have a latent ambiguity when read in context of the surrounding circumstances. In a recent case, a husband challenged a clarification order.

The final divorce decree included a provision setting forth the amount of his bonuses the husband would pay to the wife. It further provided he would provide her a 1099 tax statement for each payment if allowed by his employer. If he could not provide the 1099, “then the payments made to [the wife would] be the amounts above net of taxes paid in [his] tax bracket.”

The wife later petitioned for enforcement, arguing the husband was not dividing the bonuses “net of taxes paid in [his] bracket,” but was instead dividing them after the tax withholding by his employer. She requested a clarifying order if the court found the decree was not specific enough to enforce by contempt.

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Published on: November 6, 2019 | by Kelly McClure

The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders. Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services. The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him. The father was ordered to pay child support beginning in December 1996. The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers. The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Published on: October 16, 2019 | by Kelly McClure

The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources. The statute sets forth what types of income are included and excluded from the parent’s net monthly resources. In many families, it is fairly straight-forward to determine what is included in the calculation. If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources. Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation. Prior to the marriage, the father settled a claim for a work-related accident with his employer. As a result of the settlement, the father receives $6,970 per month from an annuity. The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage. The mother filed for divorce less than a year after the couple was married. Although the couple reached agreement on some issues, they were unable to agree on child support and medical support. The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

Father’s Disability Following Stroke Leads to Modification of His Texas Child Support Obligation

Published on: September 25, 2019 | by Kelly McClure

Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation. If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.

In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled. The original support order was entered in 2006. The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.

Soon after the 2012 order was entered, the father had a stroke. The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits. He moved to modify the support order on the grounds his circumstances had materially and substantially changed.

Jurisdiction in Texas Divorce

Published on: September 4, 2019 | by Kelly McClure

In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue. In other cases, however, one parent has moved away and there may be a dispute over jurisdiction. Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody. The family lived in South Carolina when the child was born, but moved to Texas a few months later. They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then. They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas. He sought the exclusive right to designate the child’s primary residence. The Texas court entered temporary orders. The father added a divorce petition.

Texas Court Awards Custody to Stepfather

Published on: August 14, 2019 | by Kelly McClure

It can be very difficult for a non-parent to get custody of a child in Texas custody cases. A presumptive father may, however, have an advantage over other non-parents. In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”