Articles Posted in Child Custody

iStock-531351317-300x200Texas family law presumes that is in the child’s best interest for both parents to be appointed joint managing conservators.  Tex. Fam. Code § 153.131(b).  When the court appoints joint managing conservators, it must give one the exclusive right to decide the primary residence of the child.  Tex. Fam. Code 153.134(b)(1).  The court may order a joint managing conservator to pay the other joint managing conservator child support. Tex. Fam. Code § 153.138. In both custody and child support determinations, the trial court’s primary consideration must be the best interest of the child.  In a recent case, a father appealed a court’s custody and child-support determinations.

Texas Office of the Attorney General Files Paternity Suit

The Office of the Attorney General petitioned to establish the parent-child relationship, asking the court to determine the child’s parentage and order conservatorship, possession, access and support.

The father testified he earned $25 per hour working as a contractor, but the availability of the work varied.  At the time of hearing, he worked between 32 and 60 hours per week.  He also testified he had the child the majority of the time and requested the right to establish the child’s residence, but he had not filed paperwork to be named primary custodian.  The father testified his parents kept the child during the day.  He said he spent a lot of time at their house and went home after putting the child to bed.

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judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225A Texas conservatorship order may be modified if doing so is in the child’s best interest and there’s been a material and substantial change in circumstances.  When a parent seeks modification, the other parent may file a counter-petition seeking their own modification.  In a recent case, a mother appealed a modification order in favor of the father after she had petitioned for modification.

According to the appeals court’s opinion, when the parties divorced, the trial court approved their agreement to be joint managing conservators with 50/50 custody.  The mother petitioned for modification, seeking primary custody and educational decision-making.   The father also sought appointment as primary conservator. He asked for modification allowing him to impose reasonable discipline and to limit the mother’s phone contact during his possession.

The mother pointed to the father’s allowing the son to stay alone, behavior at sporting events, storage of a gun, and a text message asking her to pick up the children because “he was done” with them.

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5thingsdivorcecourt_header-300x163The best interest of the child is the primary consideration in a Texas custody case.  Tex. Fam. Code § 153.002.  The trial court has broad discretion in determining what is in the child’s best interest.  There is a presumption that a standard possession order is in the child’s best interest, but a trial court can deviate from the standard upon consideration of certain factors, including the child’s age, development, and needs, and the circumstances of the parents.  Tex. Fam. Code § 153.256.  The trial court may impose restrictions on possession and access, but only to the extent necessary to protect the best interest of the child.  Tex. Fam. Code § 153.193. A husband recently challenged a divorce decree that required flexibility in the possession and access of his children when they reached the age of 16 and started driving.

Wife Files for Divorce

According to the appeals court’s opinion, the parties got married in 2002 and had three children.  The wife petitioned for divorce in September 3, 2019, and requested temporary orders for expanded possession of the children.  The husband asked for equal possession.

When the children were interviewed by Family Court Services, they all indicated they wanted equal time with each parent week-to-week.  They also wanted to stay together.

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A trial court must have subject-matter jurisdiction over a matter to hear case.  Subject-matter jurisdiction in a Texas child custody case is governed by Chapter 152 of the Texas Family Code. Pursuant to Tex. Fam. Code § 152.201(a), a court only has subject-matter jurisdiction to make an initial custody determination if Texas is the child’s home state, if Texas was the child’s home state during the six months immediately before commencement of the proceeding, if another state’s courts does not have jurisdiction as a home state, or if the child’s home state court has declined jurisdiction.  Subject-matter jurisdiction can be raised at any time, and the parties cannot waive it.

Mother Challenges Jurisdiction

A mother recently challenged the trial court’s jurisdiction after it issued temporary custody orders.  According to the appeals court’s opinion, the father petitioned for divorce and requested a temporary custody order.  The wife filed a counterpetition and asked for a custody determination.  After the trial court entered temporary custody orders, however, the mother alleged it did not have jurisdiction over the custody case and asked the court to dismiss the temporary orders and pending custody suit. The parents agreed to the temporary orders at the hearing.  The mother subsequently moved to dismiss the custody case, alleging the court did not have subject-matter jurisdiction over the custody matter.  After the hearing, the trial court found the child had never lived in Texas and had lived in Japan for the six months before the father filed his petition. The court concluded Chapter 152 of the Texas Family Code governed the subject-matter jurisdiction of the custody matter. The court also found the child’s “home state” under Tex. Fam. Code § 152.105(a) was not Texas, but Japan. The trial court determined it did not have subject-matter jurisdiction to make an initial custody determination pursuant to Tex. Fam. Code § 152.201 and that it could not acquire it by consent of the parties.

The father appealed. He argued the Texas Family code does not invoke “true” subject-matter jurisdiction or deprive the court of jurisdiction over custody issues. The appeals court disagreed, however, noting that Tex. Fam. Code § 152.201 “invokes or relinquishes subject-matter jurisdiction in initial child custody matters. . .”

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iStock-1175949984-300x200When the trial court appoints joint managing conservators in a Texas custody case, it must identify who has the right to determine the child’s primary residence with or without a geographic restriction.  Tex. Fam. Code Ann. § 153.134(b). The court must consider the child’s best interest.  The court may also modify the terms and conditions of the child’s conservatorship if doing so is in the child’s best interest.  Tex. Fam. Code Ann. § 156.101.

A father recently challenged a trial court’s modification order adding a geographic restriction broader than that he requested.  In the original order establishing the parent-child relationship, both parents were named joint managing conservators, with the mother having the right to determine the child’s primary residence without any geographic restriction.  Both parents lived in Kerr County at the time.

Father Seeks to Modify Prior Order

The father subsequently sought modification of the order to give him extended visitation and add a geographic restriction of Kerr County.  The trial court ultimately granted the extended visitation and added a geographic restriction of Kerr, Atascosa, and Bexar counties and counties contiguous to Kerr.

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iStock-182358076-300x200A court may modify a child’s conservatorship if there has been a material and substantial change in circumstances and the change is in the child’s best interest.  A mother recently challenged a court’s modification of her child’s conservatorship.

According to the appeals court’s opinion, the parents divorced following the mother’s affair with a married man.  The divorce decree named the parents joint managing conservators with neither having the exclusive right to designate the daughter’s primary residence.  The decree also incorporated an agreement for visitation, custody, and child support.  Eleven months later they both sought modification.

Changed Circumstances Since Divorce?

The mother married the man with whom she had the affair.  He had two children and a new baby with the mother. The police were twice called to the home due to arguments between the mother and stepfather. The mother and stepfather also separated twice, once for around three months and another time for a single night.

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iStock-1125625723-300x200A custody determination issued in another state or country can be registered in Texas.  To do so, the party must send a letter requesting registration to the Texas court, along with two copies of the determination, one of them certified, a sworn statement that, to the best of the requester’s knowledge and belief, the order has not been modified, and their name and address and the name and address of any parent or person acting as a parent who has been awarded custody or visitation under the order.  Tex. Fam. Code § 152.305(a). The Texas court then files the determination as a foreign judgment. The court must also give notice to the person seeking the registration and any parent or person acting as a parent who was awarded custody or visitation in the determination and provide them with an opportunity to contest the registration. If a person wants to contest the validity of the registered order, they must request a hearing within 20 days of being served the notice.  The court must confirm the registered order unless the person contesting it establishes that the issuing court did not have jurisdiction, that the determination was vacated, stayed, or modified, or that they did not receive required notice in the proceedings before the court that issued the order. Tex. Fam. Code § 152.305.

Mother’s Request for Registration of Custody Determination Denied

A mother recently challenged a court’s denial of her request for registration.  She had filed a “Registration of Child Custody Determination” to register an order from New York. The New York order provided that the parties would share joint custody of the child and that the child would live with the mother.

The father filed a timely objection to the registration. He argued there were proceedings for enforcement pending in New York.  He alleged that the New York court had recessed to let the mother get an attorney and rescheduled on the same day the wife sought to register the order in Texas.  He argued that registering the decree in Texas would make it enforceable and subject to modification in Texas, while the New York court still had and was exercising continuing jurisdiction.

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iStock-902725964-300x200Parents have a fundamental right to make decisions about their child’s care, custody, and control. There is a presumption that a fit parent acts in the child’s best interest.  A non-parent seeking visitation or custody over a parent’s objection must overcome the fit-parent presumption. They must have evidence of behavior or conduct that will probably result in the child’s health or well-being being significantly impaired.  A non-parent seeking custody or visitation must also show that they meet the requirements for standing under Texas family law.

Grandmother Files Custody Suit

A mother recently challenged a court’s judgment awarding visitation to the child’s paternal grandmother.  According to the appeals court’s opinion, the paternal grandmother petitioned to be appointed as possessory conservator of the child, but subsequently amended the petition seeking possession and access.  She alleged denial of possession and access would significantly impair the child’s health and well-being.  Her affidavit stated she was the parent of the child’s father and the child’s father had been incarcerated for more than three months.  It further stated that the child lived in her home while the father temporarily had primary care of the child because of the “mother’s instability.” She also stated the father was incarcerated because she had made a report “to protect the child.”

The mother did not file an answer or appear at the remote trial.

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5thingsdivorcecourt_header-300x163A court may clarify an order in a Texas suit affecting the parent-child relationship if it finds the order lacks sufficient specificity to be enforced through contempt.  Tex. Fam. Code Ann. § 157.421.  The court cannot make substantive changes through an order to clarify and such changes are not enforceable. Tex. Fam. Code § 157.423.  Substantive changes must be pursued through a modification suit.  Generally, to obtain a modification, a parent must show there has been a material and substantial change in circumstances and the modification will be in the child’s best interest.

Mother Appeals Clarification Order

A mother recently challenged a clarification order, arguing it had made a substantive change to the previous order.  The parties entered into an agreed order regarding their children in December 2016.  The father moved for clarification of language relating to extracurricular activities.  The agreed order provided in relevant part that the parents would put each child in a single extracurricular activity at a time and have a written agreement regarding the extracurricular activity.  The court granted the motion and revised the language to state that each parent may place each child in an extracurricular activity, but, instead of referencing an agreement, the clarified order provided there would be a written designation of the extracurricular activity.

The mother appealed, arguing the court erred in granting the motion because the language in the agreed order was not ambiguous or erroneous and that the revised language constituted a substantive change.

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iStock-839381426-300x200When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children.  A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations.  The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development.  If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest.  Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification.  The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence.  In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children.  He also alleged the mother neglected the children.

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