In a Texas custody case, the court must designate who will determine the child’s primary residence and establish the geographic area within which the child’s primary residence must be or specify that there is no geographic restriction.  Tex. Fam. Code § 153.134(b)(1).  The court bases its determination on the specific facts of the case.  The trial court also has discretion to impose restrictions on a parent’s possession and access to the child that are in the child’s best interest.  A father recently challenged a number of issues related to his possession and access to his children.

According to the opinion of the appeals court, the parties married in 2017 and had two children together.  The mother petitioned for divorce in 2020, requesting the father have supervised possession of the children, submit to random alcohol and drug testing, and use a Soberlink monitoring device.  A number of witnesses testified, including a custody evaluation expert and a co-parenting therapist, both of whom the court found credible.  The final divorce decree named the parties joint managing conservators but gave the mother the exclusive right to designate the children’s primary residence with a geographic restriction of Williamson and contiguous counties.  The order provided for a step-up possession schedule for the father and limited both parents’ romantic partners being around the children.

Geographic Restriction

The father appealed, challenging the geographic restriction. He argued it should be limited to Williamson County without including contiguous counties. He argued that it could be very difficult for him to attend activities and appointments if the children lived an hour away.

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To modify a Texas custody order, the court must find that there has been a material and substantial change in circumstances and that the modification would be in the children’s best interest.  In a recent case, a mother challenged the court’s finding that it was in the children’s best interest for the father to be the sole managing conservator following involvement by the Department of Family and Protective Services.

History

When the parents divorced, they were named joint managing conservators and the mother was awarded the right to designate the children’s primary residence.

The mother testified that the father did not regularly visit the children or telephone them.  She said she “moved a lot” with the children and did not communicate with them.  She was homeless for a week or two. The children stayed in with their father’s mother while the mother stayed in her car.

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When a party does not file an answer or participate in a Texas divorce proceeding, the court may issue a default judgment against them.  A mother recently challenged the default divorce decree entered against her through a petition for bill of review.

A bill of review is brought when a party seeks to set aside a judgment that cannot be challenged by appeal or a motion for a new trial. A party seeking a bill of review generally must show that they have meritorious claim or defense they could not make due to an official mistake or the other party’s fraud, accident, or a wrongful act, with no fault or negligence by the petitioner.  Unless the petitioner claims they were not served, they must first present prima facie proof of a meritorious defense before trial. If the petitioner meets this burden, the court then conducts a trial on the merits. A petitioner shows they have a meritorious defense if the defense is not barred by law and they would be entitled to judgment if there is not contradictory evidence offered on retrial. Any factual dispute is resolved in favor of the petitioner.

The parties got married in 2012 and had two children together.  They separated in 2021.  The father petitioned for divorce in February 2022.  According to the appeals court’s opinion, the mother was service with process, but did not file an answer or otherwise participate.  The mother alleged that they “communicated openly” about child support and possession while the case was pending.  The mother contacted the court’s office in March regarding final hearing dates and was told nothing had been set, but a default divorce decree was entered on April 4.

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Texas family law matters are often complex.  A father recently challenged a modification order changing his child support obligation after a lengthy and somewhat complicated litigation involving the child.

The mother petitioned for enforcement of child support and medical support in September 2022, asking the father be held in contempt and ordered to pay arrearages for child support and medical support, as well as attorney’s fees.

Enforcement and Modification Hearing

According to the appeals court, the parties and court treated the matter as a modification action as well as an enforcement action during the bench trial. The father had previously been ordered to pay $592 in child support and $92 in medical support monthly. It was established at trial that the mother had been receiving $834 in monthly Veterans Administration payments on behalf of the child since January 2021 because the father was a veteran.  The mother also testified the father received social security disability benefits and income from business ventures.  The father was not present, but was represented by counsel at trial.

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When retirement accounts are an issue in a Texas divorce, the court will generally issue a Qualified Domestic Relations Order (“QDRO”).  A QDRO is an order that creates, recognizes, or assigns rights of an alternate payee to receive benefits from another person’s retirement plan.  Although a QDRO is often issued during the divorce, in some cases, a court may enter a post-judgment QDRO.  A former wife recently challenged a post-judgment QDRO, arguing it was void.

The parties had been married around nine years when the wife petitioned for divorce.  The trial court awarded the wife all sums, increases, proceeds, and other rights related to her employee retirement accounts, except $10,000 from her Teacher Retirement System (“TRS”) account went to the husband.  The divorce decree was signed on March 27, 2019 and the divorce was effective October 31, 2018.

Husband Seeks QDRO

The husband filed a proposed order on June 3 in the divorce case seeking a QDRO but did not serve the wife.  The court entered an order a few days later designating the husband alternate payee of the wife’s TRS plan and stating he was not to “receive more than a total of $10,000 plus interest. . ..”

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Generally, all evidence in a Texas custody case should be presented at trial.  In some cases, however, the court may decide to reopen evidence pursuant to Texas Rule of Civil Procedure 270.  In a recent case, a mother challenged the court’s custody order after it reopened evidence following the trial.

The only issue at trial was who would be primary conservator and get child support.  The court expressed an intent to give the mother the exclusive right to designate the child’s primary residence at the end of the trial.

The father subsequently moved to reopen evidence, seeking permission to present evidence on the child’s best interest.  He argued the mother had presented evidence of a stable relationship with a person identified by the court as “B.J.,” but misrepresented her relationship and he had not way of knowing this information before trial.  He argued she testified she and B.J. were in a stable relationship and cohabitating without mentioning a new romantic interest.  He argued she had represented her relationship as more stable than his.  He argued the court indicated the decision was close and this evidence could have been a deciding factor.

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Substance abuse can be devastating to families.  Texas family law recognizes the risk to children from parental substance abuse and seeks to protect them.

Termination of Parental Rights

One of the most severe potential consequences of substance abuse is termination of parental rights.  The court may terminate the parental rights of a parent who is the cause of a child being born addicted to alcohol or an illegal controlled substance.  Additionally, a court may order termination of parental rights if it finds by clear and convincing evidence that the parent used a controlled substance in a way that endangered the child’s health or safety and either failed to complete a court-ordered treatment program or continued to abuse a controlled substance after completing a court-ordered program. Tex. Fam. § Code 161.001.

Custody and Visitation

Even when parental substance abuse does not result in termination of parental rights, it can still have a significant result on custody and visitation.  The Texas Family Code includes a stated public policy to both ensure that children have frequent contact with parents who act in their best interest and to provide children with a safe, stable and nonviolent environment.  The primary consideration in custody matters is the child’s best interest.

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A Domestic Relations (“DRO”) is often used in divorce to address the rights of the former spouse as an alternate payee to receive some or all of a participant’s benefits under a retirement plan.  A trial court generally does not have the authority to render orders after expiration of its plenary power over a final judgment.  If a Texas divorce decree becomes final and unappealable without rendering a DRO, then the trial court only has the authority to render a valid DRO upon a petition and service pursuant to the Texas Rules of Civil Procedure.  A judgment is rendered when the trial court officially announces its decision orally in open court or in a filed memorandum. An oral rendition must indicate the trail court’s intent to render the full, final, and complete judgment.

A husband recently appealed a DRO.  The parties entered into a mediated settlement (“MSA”) that was memorialized in the agreed final divorce decree.  The decree included provisions related to the husband’s military retirement and stated they would be more particularly described in a Domestic Relations Order (“DRO”).  The husband his attorney signed the decree.  The husband moved for the signing of the DRO in June 2022, stating he believed the proposed DRO accurately reflected the parties’ agreements.  The court and the parties’ attorneys signed the DRO.

After the husband got a new attorney, he moved to vacate the DRO, arguing the divorce decree was not a rendition of judgment on the DRO and the DRO had been rendered outside the court’s plenary power.  He argued, in the alternative, for modification of the DRO because the calculation used to determine the wife’s share was not in compliance with federal law.  The trial court denied the motion.

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If a parent does not comply with a Texas custody or child support order, the other parent may seek enforcement of the court order and, in some cases, request the parent be held in contempt.  A father recently challenged an order granting the mother’s motion to enforce the divorce decree.

When the parties divorced, one of their two children was still a minor.  Pursuant to the divorce decree,  the parties were required to equally share health care costs, the cost of a vehicle, and college fund for the minor child.  The decree also ordered the father to pay for the minor child’s phone plan until she finished high school, and then that expense would also be split.  The decree incorporated an agreement incident to divorce that required the mother and father to share the other child’s healthcare costs.

Both parties moved to enforce the decree in 2019, each seeking contempt, or clarification if the court found the decree was not sufficiently specific.  The trial court’s subsequent order required the parties to communicate and exchange expense sharing exclusively through MyFamilyWizard.  The court’s order also clarified that the father was required to pay full cost of the minor child’s phone.

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Pursuant to Tex. Fam. Code § 153.432, a grandparent who meets certain requirements has standing to file suit for possession or access to their grandchild.  The grandparent must sign an affidavit “on knowledge or belief” that alleges that denial of possession or access would significantly impair the physical health or emotional well-being of the child and provides supporting facts.  The trial court then has to determine if those allegations would be sufficient to grant possession or access under Section 153.433. If not, the trial court must dismiss the grandparent’s suit.

Parents have a fundamental right to make decisions about their children’s care, custody, and control.  The law presumes that a fit parent acts in their children’s best interest.  Once the grandparent establishes standing, they must overcome the fit-parent presumption by proving denying them possession or access would significantly impair the child’s health or well-being.  The grandparent must allege “specific, identifiable behavior or conduct,” such as severe neglect, physical abuse, abandonment, abuse of drugs or alcohol, or immoral behavior, that would likely cause significant impairment to the child.  Rolle v. Hardy.  Prior cases have held that illegal drug use by a mother during pregnancy may support a finding of significant impairment and illegal drug use after the birth may impair the ability to parent.  A grandparent does not have standing just because the child wants to see them or because they would be a better custodian. A grandmother recently challenged a court order dismissing her petition for possession or access to her grandchild.

The Grandmother’s Petition

The child’s father died before the child was born.  His mother then petitioned for grandparent possession of or access to the child shortly after the birth.  The grandmother alleged the mother had abused drugs and alcohol while she was pregnant with the child.  She claimed denying her access to the child would significantly impair his health and well-being.

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