Child Custody

Texas Grandmother Must Overcome Fit-Parent Presumption to Become Possessory Conservator

Published on: September 22, 2021 | by Kelly McClure

iStock-1147846829 Grandparents sometime take on a parental role in the lives of their grandchildren. In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children. The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.

Texas Court Can Impose Geographic Restriction After Jury Gives Parent Custody

Published on: September 19, 2021 | by Francesca Blackard

iStock-483613578 A geographic restriction in a Texas custody order helps ensure the parent without physical custody has access to the child, but it can also impose severe limitations on the mobility of the parent with physical custody of the child. In a recent case, a mother challenged the imposition of a geographic restriction on the child’s primary residence by the trial court after a jury found she should be the child’s sole managing conservator.

Modification Suit Filed After Prior Order

The final divorce decree named the parents joint managing conservators and gave the mother the exclusive right to designate the child’s primary residence within a specific county. The father later petitioned for modification, seeking the right to designate the child’s primary residence. The mother asked the court to remove the father as a joint managing conservator and name her sole managing conservator with the exclusive rights set forth in Tex. Fam. Code § 153.132, including the right to designate the primary residence. She also asked for an additional $100 per month in child support.

The jury found the mother should be appointed the sole managing conservator. No other issues were presented to the jury. The judge’s letter ruling indicated she wanted to place a geographical restriction on the mother’s right to designate the child’s primary residence, but was uncertain of the court’s authority to do so under the circumstances. The letter ruling stated the court imposed the geographic restriction if both parties’ counsel agreed it could, but not if counsel agreed it could not. If counsel disagreed as to whether the court could impose the restriction, the court requested they provide authorities on the issue. The trial court denied the modification of the child-support obligation.

Texas Court Gives Father Custody after Mother Seeks Modification

Published on: August 1, 2021 | by Robert Epstein

iStock-1147846829 A court may generally only modify a Texas custody order if the modification is in the best interest of the child and there has been a material and substantial change in circumstances since the previous order was rendered or the parties signed the settlement agreement. The court may also modify an order if the modification is in the child’s best interest and an older child has told the court his or her preference or if the parent with the exclusive right to designate the child’s primary residence voluntarily gave up primary care or possession of the child for six months or more. Tex. Fam. Code Ann. § 156.101.

In some cases, when one parent seeks a modification, the trial court may instead grant a modification requested by the other parent. In a recent case, a mother challenged a modification giving the father the exclusive right to designate the child’s primary residence after she had initially moved for a modification to expand the geographic restriction on the child’s primary residence.

Mother Files Modification Suit

Following the parties’ divorce, the mother had the exclusive right to designate the child’s primary residence in one of two counties. She petitioned for modification eight years later, seeking increased child support and the right to designate the child’s primary residence in one of the counties or any contiguous county. The father requested the exclusive right to designate the child’s primary residence within that designated county.

Joint Managing Conservators Do Not Have to Have Equal Possession in Texas Custody Order

Published on: June 2, 2021 | by Robert Epstein

5thingsdivorcecourt_header A court should consider a number of factors in deciding a Texas custody case. Even when the court determines the parents should be joint managing conservators, the court does not have to award equal periods of possession and access to the child to each parent. Tex. Fam. Code § 153.135. Under Texas law, there is a rebuttable presumption that the standard possession order serves the child’s best interests. Tex. Fam. Code § 153.252. A father recently challenged the divorce decree giving the mother the right to designate the child’s primary residence and awarding him the standard possession order.

Trial Court Initially Awards Father Primary Custody

According to the appeals court’s opinion, the parties’ child was born about three months after they married in 2014. The parties separated in 2016 and the mother petitioned for divorce in March 2017. The court signed temporary order giving the father the exclusive right to designate the child’s primary residence in Travis County.

At the custody hearing, there was evidence the mother had sustained a serious brain injury the previous year. There was significant testimony about her mental health before and after the separation and about how her injury affected her ability to take care of the child.

Texas Appeals Court Upholds Custody Modification Following Alleged Assault and Abuse

Published on: May 23, 2021 | by Robert Epstein

iStock-1163040189 A Texas custody order may only be modified in certain circumstances. The parents may agree to change the order. The court may order modification if the child is at least twelve years old and wants to change which parent has primary custody. Otherwise, the parent seeking the modification must generally show that there has been a material and substantial change in the circumstances of the child or a parent since the current order was rendered. The court must consider the facts and circumstances of the specific case to determine if there has been a material and substantial change in circumstances. Common situations that may lead to a material and substantial change in circumstances include marriage, a change in employment, or relocation of a parent’s primary residence. Courts have also recognized changes related to the relationship between the parent and child, including abuse, mistreatment, or “poisoning the child’s mind.” In all cases, the modification must be in the child’s best interest.

Mother and Father Agree to Custody Modification

In a recent case, a father challenged a modification sought by the mother. According to the appeals court’s opinion, the parents divorced in 2012 and entered into an agreed order to modify custody in 2016. Pursuant to the 2016 modification, the mother was given the right to determine the children’s residence within a specified geographic restriction. The father was awarded custody beyond the standard order. The agreed order did not require either parent to pay child support.

After one of the children broke an arm, the mother moved to modify that order and the court entered the modification in 2018. The new order required the father to pay child support and changed his custody schedule. He appealed.

Successor Judge Had Authority to Reform Judgment in Texas Parental Adjudication Case

Published on: May 9, 2021 | by Kelly McClure

BSgavelx1200-768x432-1 The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires. Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power.

In a recent case, a mother challenged the court’s authority to reform the judgment. According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child. Both the mother and the alleged father sought an order adjudicating him to be the child’s father.

The parties reached a partial agreement and went to trial on the remaining issues.

Texas Custody Schedule Changed Due to School Absences

Published on: May 2, 2021 | by Robert Epstein

iStock-1252096710 A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case. In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020. Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks. The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020. He alleged the child had been tardy five days and absent two days during the fall semester of 2019. He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

Texas Custody Modification Upheld Despite Conflicting Evidence

Published on: March 28, 2021 | by Kelly McClure

iStock-1139699594 When a court considers Texas child custody and visitation, the child’s best interest is the primary concern. The court considers certain factors, including what the child wants, the child’s current and future needs, any danger to the child, the parents’ respective abilities, programs available, the parents’ plans for the child, stability, any acts or omissions indicating the relationship between the parent and child is not proper, and any excuse for those acts or omissions.

A father recently appealed a denial of his petition for modification and grant of the mother’s counterpetition. At the time of the divorce, the trial court ordered the parties not to move from a specific area without a modification order or written agreement filed with the court. Neither parent was given the exclusive right to designate the child’s primary residence. Nonetheless, both parents moved outside of the geographical boundary after the divorce.

Texas Grandmother Has Standing to File Custody Suit

Published on: March 25, 2021 | by Francesca Blackard

iStock-902725964-scaled In Texas custody cases, it can be very difficult for a non-parent to obtain custody or visitation of a child over the objection of a parent. In some circumstances, however, a non-parent (such as a grandparent) has the right to file suit seeking custody or visitation. One such circumstance is when the person has recently had care, custody, and control of the child for at least six months.

In a recent case, a grandmother sought custody of her son’s child after her son’s death. According to the appeals court’s opinion, the child was born in 2014. From 2014 to 2020, the child and parents lived in various places, including the paternal grandmother’s home in Wilson County. From 2017 to 2019, the child went to daycare in Wilson County. From August 2019 to January 22, 2020, the parents and child lived with the paternal grandmother.

Texas Supervised Visitation

Published on: March 16, 2021 | by Kelly McClure

iStock-545456068-scaled A court must base its decisions regarding custody and visitation primarily on the child’s best interest. In a recent Texas case, a father challenged a court’s modification of his prior possession order, restricting him to supervised visitation with his daughter.

The mother petitioned to be named the child’s sole managing conservator and asked the court to either deny visitation with the father or, in the alternative, to require it to be supervised. She alleged the child had reported being spanked, being physically punished by her stepmother and her step-grandmother, being forced to stand in a corner, being underfed sometimes, being subjected to verbal abuse and threats of physical violence, and being required to stay in her room watching television for hours while she was in her father’s custody. The mother also alleged the child’s foot had been injured by her step-grandmother and not given medical attention. She further alleged the child’s stepmother repeatedly tried to put makeup on the child when she was allergic to it.