Child Custody

Texas Not “Home State” of Child Whose Mother Moved to Illinois During Pregnancy

Published on: May 5, 2025 | by Francesca Blackard

Texas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which identifies what state has jurisdiction over custody matters. The UCCJEA generally prioritizes the child’s home state for jurisdiction. The child’s home state is where they have lived with a parent for the six months before the custody proceeding commenced, or if they are less than six months old, where they have lived with a parent since birth.

For a Texas court to have jurisdiction to make an initial child custody determination, Texas must be the child’s home state on the date the proceeding commenced or must have been the child’s home state within six months before the proceeding commenced if the child is absent from Texas but a parent or person acting as a parent still lives in Texas. Tex. Fam. Code § 152.201(a)(1). Texas may also have jurisdiction if another state court does not have jurisdiction or if child’s home state court declined jurisdiction because Texas was a more appropriate forum and the child and the parents, or the child and at least one parent or on person acting as a parent, have a significant connection with Texas and there is substantial evidence in Texas regarding the child. Tex. Fam. Code § 152.201(a)(2). A Texas court may also have jurisdiction if all courts having jurisdiction on the grounds above have declined to exercise it because a Texas court is a more appropriate forum. Tex. Fam. Code § 152.201(a)(3). Furthermore, Texas may have jurisdiction when no other court or any state would have jurisdiction based on the above criteria. Tex. Fam. Code § 152.201(a)(4).

A mother recently challenged a Texas court’s jurisdiction over her child’s custody. According to the appeals court’s opinion, the parties separated while the mother was pregnant and she moved to Chicago before the child was born. The mother filed for divorce in Illinois and the father filed for divorce in Texas. The mother’s petition did not include an issue related to the custody of the unborn child, but the father’s petition did. The child was born in in Illinois after both petitions had been filed.

Texas Court Denies Modification to Prevent Mother’s Relocation with Children

Published on: April 7, 2025 | by Francesca Blackard

Courts may modify a Texas custody order if doing so is in the best interest of the children and there has been a material and substantial change in circumstances of the child or a conservator since the order was rendered. Tex. Fam. Code § 156.101. In determining the children’s best interest, courts consider the factors set forth in Holley v. Adams, but the court is not limited to those factors and all of the Holley factors may not apply in each case.

Courts may also place geographic restrictions on the child’s primary residence to ensure children are able to have frequent and continuing contact with their parents. To determine the children’s best interest when one parent wants to relocate, court consider a number of factors set forth in Lenz v. Lenz. A father recently appealed the denial of his modification petition seeking a more limited geographic restriction.

Modification Proceeding

The father petitioned for modification of the parent-child relationship to reduce the statewide geographic restriction to Midland County. Alternatively, he asked the court to modify the relationship as it deemed in the children’s best interest. He also asked for increased travel expenses because the mother had relocated. In her counterpetition, the mother sought to be named the sole managing conservator with the father being named possessory conservator with supervised visitation. They both alleged a material and substantial change in circumstances since the divorce decree was signed and entered.

Mother’s Spouse Challenges Adjudication of Biological Father as Child’s Parent in Texas Custody Case

Published on: March 21, 2025 | by Kelly McClure

Parental rights of same-sex couples can be complex. A Texas appeals court recently considered a case in which the mother’s spouse who had been named as a parent on the child’s birth certificate challenged a court order for genetic testing and a subsequent order adjudicating the child’s biological father as the child’s parent.

According to the appeals court, C.B. and the child’s mother got married in 2017. The mother gave birth to the child in November 2018. C.B. and the mother told hospital staff they were the child’s parents and were both listed on the birth certificate. They lived and raised the child together until the mother petitioned for divorce in 2021.

The mother listed the child as a child of the marriage in her original petition, but subsequently amended the petition. In the amended petition, she denied C.B. was the child’s parent and identified another person, identified by the court as “C.H.,” as an “additional [r]espondent.” C.H. filed an answer claiming to be the child’s biological father.

Texas Appeals Court Vacates Judgment Giving Grandmother Possession and Access to Grandchildren

Published on: March 7, 2025 | by Kelly McClure

A party must establish standing to maintain a lawsuit. If the party does not have standing, the court does not have subject-matter jurisdiction. The parties cannot waive subject matter jurisdiction. The Texas Family Code sets forth when a non-parent has standing to pursue access or pursue to a child. A non-parent seeking access or possession of a child must establish standing pursuant to the requirements set forth in the applicable statute.

Chapter 153 of the Texas Family Code sets forth when a grandparent has standing to pursue a claim for access or possession. Pursuant to § 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denying them possession or access “would significantly impair the child’s physical health or emotional well-being” and state supporting facts. The court then determines if the facts would be sufficient to support possession or access under § 153.433 if true. The court may order possession or access under § 153.433 if at least one parent’s rights have not been terminated, the grandparent proves denying possession or access would significantly impair the child’s health or well-being by a preponderance of the evidence, and the grandparent’s child has been incarcerated for the three months before the petition, is incompetent, is deceased, or does not have possession or access to the child. In a recent case, a father and maternal grandmother each appealed a court order granting the grandmother possession and access.

Grandmother’s Petition

In December 2021, the grandmother petitioned for possession or access to her grandchildren. The father filed a counterpetition, asking for a judgment naming him sole managing conservator. In February 2022, the court rendered temporary orders naming the grandmother a “nonparent” possessory conservator with standard possession.

The trial court granted the grandmother possessory conservatorship after a trial. On the father’s motion, the trial court modified the judgment to remove the grandmother’s designation as “conservator,” but still granting her possession and access.

Independent Medical Decision-Making in Texas Custody Case Involving Child with Special Needs

Published on: February 25, 2025 | by Kelly McClure

In some Texas custody cases, parents may not agree on the best medical treatment for a child, especially a child with complex special needs. Courts sometimes give each parent the authority to make decisions regarding medical treatment during their periods of possession, but this can become complicated when the parents cannot agree on appropriate treatment. In a recent case, a father appealed a divorce decree that allowed each parent to make decisions regarding non-invasive treatment during their respective periods of possession.

Medical Decision Making

The parties’ divorce decree gave the mother the exclusive right to enroll their younger child in school and gave both parents the authority to consent to non-invasive medical treatment during their possession. The father appealed these two issues. Although the parties had two children, only the younger child was subject to the appeal.

The father argued that allowing each parent the right to decide whether to administer medication to the child during their possession was not in the child’s best interest.

Texas Appeals Court Affirms International Travel Restrictions for Child in Divorce Decree

Published on: February 14, 2025 | by Kelly McClure

The Fourteenth Court of Appeals recently reversed a trial court’s order imposing restrictions on international travel for a child whose mother had ties to Russia. In another recent case, however, the Third District Court of Appeals determined there was no error in a trial court’s imposition of travel restrictions for a child in a Texas divorce decree involving a mother with ties to India.

The parties’ son was nine years old when the final divorce decree was signed in 2023. The trial court ordered that the father maintain control and possession of the son’s passport until the child turns 13. The court also prohibited either party from traveling outside the U.S. with the child without the written agreement of the parties, with such agreement not being unreasonably withheld after the child turns 13.

The mother appealed, arguing the trial court abused its discretion in restricting international travel without evidence of a risk of abduction.

Modification of Texas Child Custody and Child’s Preference

Published on: January 30, 2025 | by Kelly McClure

A trial court may modify a Texas conservatorship if modification is in the child’s best interest and the child is at least 12 years old and has told the court in chambers which parent they prefer to have the exclusive right to designate their primary residence. Tex . Fam . Code § 156.101(a)(2). In a recent case, a mother challenged a modification that named the father primary managing conservator, in part based on the fourteen-year-old daughter’s preference.

The 2017 final divorce decree appointed both parents joint managing conservators of their child. The mother had the exclusive right to designate the child’s primary residence. The father was given an expanded standard visitation schedule and ordered to pay monthly child support.

Modification Proceeding

The father petitioned for modification in March 2021, requesting the exclusive right to designate the child’s primary residence. He argued there had been a material and substantial change in circumstances. He alleged the child, who was now older than twelve years old, would express a preference on which parent should have the exclusive right to designate her primary residence.

Credible Risk of International Abduction in Texas Custody Cases

Published on: January 28, 2025 | by Francesca Blackard

Sometimes when one parent has international ties, the other parent may have concerns about international abduction. There is a two-step statutory process to assess and mitigate risk of parental international abduction. The court must consider certain factors to determine if there is credible evidence of a potential risk. If the court finds there is a credible risk based on the factors, it must determine whether preventive measures should be taken.

In determining if there is a credible risk of international abduction, pursuant to Tex. Fam. Code § 153.502, the court must consider if there is evidence the parent took, withheld, or concealed a child in violation of someone else’s right of possession of or access to the child or threatened to do so. The court must also consider whether there is a lack of financial reasons for the parent to remain in the country. The court must also consider if the parent has recently engaged in planning activities that could facilitate taking the child from the U.S. Furthermore, the court must consider whether the parent has a history of domestic violence, criminal activity, or violating court orders. The court only has to find credible evidence supporting one of the factors.

In a recent case, a mother appealed a divorce decree that imposed prevention measures without a finding there was a credible risk of international abduction.

Texas Appeals Court Considers Spouse’s Relationship to Child Following Same-Sex Divorce Case

Published on: December 14, 2024 | by Kelly McClure

Texas divorces of same-sex couples can involve unique legal issues. Recently, a Texas appeals court considered three related cases involving one spouse’s relationship to a child born during the marriage.

According to the appeals court, the parties, A. and J., signed an agreement with a reproductive services agency during the marriage. A. gave birth to R.G.S. following a reproductive procedure using donor sperm. When A. filed for divorce in 2020, she identified R.G.S. as a child born of the marriage.

The parties entered into a Mediated Settlement Agreement (“MSA”), pursuant to which J. was to be adjudicated a parent of the child. The court asked the parties’ attorneys to brief on the issue of whether the court could “adjudicate a second mom.”

Court of Appeals Finds No Harm In Trial Court Failing to Submit Mother’s Request for Primary Residence of the Children to Jury

Published on: October 20, 2024 | by Kelly McClure

When a parent petitions for modification of a Texas custody order, the parties may raise multiple issues. In a recent case, a mother challenged a modification order, arguing the trial court had erred in not submitting one of her proposed questions to the jury.

Original Modification Proceedings

The parties had two children together. The trial court initially appointed them both joint managing conservators with neither having the exclusive right to designate the children’s primary residence, pursuant to the parties’ Mediated Settlement Agreement.

The father subsequently petitioned for modification, alleging both parents being joint managing conservators was not in the children’s best interest. He sought sole managing conservatorship, or, alternatively, the exclusive right to designate the children’s primary residence.