Articles Posted in Child Custody

Parents have fundamental rights to make certain decisions regarding their children.  These rights can make it difficult for a non-parent to gain custody or visitation rights to children over the objection of a fit parent in a Texas custody case.  A Texas appeals court recently held a trial court could not award an unrelated person visitation and access to children when the father was fit.

The father filed for divorce in 2018.  The court signed temporary orders naming the mother and father joint managing conservators of the children.

A person who was unrelated to the children, identified as “B.B.,” intervened and requested a temporary restraining order.  She alleged the children had been living with her during the case.  She claimed the mother had mental health problems and had physically abused one of the children.  The court issued a temporary restraining order and ordered the parents not to remove the children from B.B.’s possession until a hearing occurred.

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When a parent wants to modify a Texas custody order, they generally must show that the change is in the child’s best interest and that there has been a material and substantial change in circumstances since the prior order.  Whether a material and substantial change has occurred is fact-specific and varies depending on the circumstances of the case.  Recently, a father successfully argued that false allegations of sexual abuse and the resulting investigations constituted a material and substantial change in circumstances justifying a custody modification.

The father petitioned to modify the Order in Suit Affecting the Parent-Child Relationship to give him the exclusive right to designate the child’s primary residence. The previous order gave the mother that right and included a modified standard possession order until the child turned five, at which time the father would begin a standard possession order.

The mother expressed concerns the child may have been sexually abused during the first extended summer visitation with the father under the standard possession order.  The father let the child go back to the mother’s home for a weekend because she was homesick.  The mother saw bruises on the child’s inner thigh and pubic bone and the child had a urinary tract infection.  The mother took the child to a clinic and then for an examination by a sexual assault nurse examiner (“SANE”).  She also took her for a forensic interview at the child Advocacy Center.

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When a parent seeks modification of Texas custody order, he or she must a substantial and material change in circumstances since the previous order.  Generally, the change must be material to the modification the parent is requesting.  A mother recently appealed a custody order modification allowing the father to have unsupervised visits, arguing he had not shown a material and substantial change in circumstances.

The mother filed a Suit Affecting Parent Child Relationship (SAPCR) asking the court to limit the father’s access to their daughter after he received a DWI in 2012.  Her affidavit detailed a number of events related to the father’s intoxication during the marriage.  She asked to be named sole managing conservator.  She also asked that the father be allowed only supervised visitation and that he be prohibited from drinking for 12 hours before and during the visitation.

The father was from Canada and had returned there.  He did not contest the suit and a default judgment was entered.  It named the mother sole managing conservator and limited the father to supervised visitation.

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For many Texas co-parents, relocating to another state is their “white whale:” relentlessly sought after, but seldom granted by the family courts. However, one Texas mother recently obtained the (nearly) unobtainable. This mother had spent years dealing with a co-parent, the father, who made even the simplest of child-rearing decisions difficult. The father had cancelled dentist appointments without telling the mother, hid the children from their mother, taught the children how to fight (by telling them to hit the mother), and refused to consent to the children’s enrollment in daycare despite one of the children suffering from speech delays that required professional attention. Nonetheless, this mother persisted.

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In a Texas custody case, the court may grant certain rights and duties to one parent exclusively even if both parents are named conservators.  The court may limit the rights or duties of a conservator parent if it finds, in writing, that doing so is in the child’s best interest.  Tex. Fam. Code Ann. § 153.072.  Courts may grant exclusive rights to one parent when the other reuses to cooperate with respect to those aspects of the child’s care.  A father recently challenged a court order granting the mother a number of exclusive rights.

The mother petitioned to modify the parent child-relationship.  She requested the exclusive right to designate the primary residence without a geographic restriction so she could accept a job and move to Louisiana.

The mother took a job in Monroe, Louisiana in 2015. The father also moved to Monroe, and they all lived there for several months. The mother testified he was abusive toward her.  She also said he took her green card and moved with the children back to Texas.

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On June 26, 2020, the Supreme Court of Texas issued a ruling that is sure to have a major impact on future non-parent custody cases in the state of Texas. In the case of In re C.J.C., the Supreme Court of Texas found that the presumption that it is in the best interest of a child to award possession to a fit parent versus a non-parent extends to modification cases.[1] This decision is certain to be seen as a major win for parents, as the Court reinforced the long-held notion that in most cases, a parent having custody of their child is best for the child.

The case involved grandparents of the child and the boyfriend of the child’s deceased mother attempting to modify the possession of the child and gain at least some court-ordered possession from the child’s father. The trial court found that the boyfriend was entitled to some possession and even some rights, such as the right to consent to emergency medical decisions.[2] The child’s father appealed this decision. Continue Reading ›

In a Texas divorce case, the trial court that enters the divorce decree generally maintains continuing and exclusive jurisdiction over the children.  In some situations, however, transfer may be appropriate or even required.  If a party moves to enforce an order, but the child has resided in another county for at least six months, the trial court must transfer the case.  Tex. Fam. Code § 155.201.  To contest a transfer, a party must timely file “a controverting affidavit.”  The controverting affidavit must deny the “grounds for transfer exist . . .”  If the opposing party files a timely qualifying controverting affidavit, then there is a hearing.  If no qualifying controverting affidavit is timely filed, the case must be transferred without a hearing.  The transfer is mandatory if the elements are met, even when an enforcement action is pending.  A mother recently challenged an enforcement order that was followed by a transfer order just two hours later.

The mother was granted the exclusive right to designate the child’s primary residence and to designate it in McLennan County.  According to the appeals court’s opinion, she had moved to McLennan County by the time the divorce decree was entered in April 2018.

The father petitioned for enforcement of possession or access in June 2019 in Harris County, where the divorce decree had been issued.  The mother moved to transfer venue based on a statute requiring a case to be transferred to the county where the child has lived for at least six months.  Tex. Fam. Code § 155.201. The mother submitted an affidavit averring that she and the child had been living in McLennan County for more than six months.

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It is not uncommon for a non-custodial parent who moves away to seek custody.  To change a Texas custody order, the parent must show that the change is in the child’s best interest and that there has been a substantial and material change in circumstances.  A mother recently challenged the denial of her petition for a change in custody.

The parents divorced in 2014 when the child was four.  The parties agreed in the decree the husband had the right to designate the child’s primary residence, but the mother petitioned for that right in December 2016.

The mother said the child lived with her until she enlisted in the Army in 2015.  According to the mother, the child then alternated between her grandmothers.  The mother remarried in 2016 and moved to Fort Hood.  She continued visiting the child most weekends until she was transferred to Poland for part of 2016.  She now lives in Colorado.

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Pursuant to the Texas Supreme Court’s 17th Emergency Order Regarding The Covid-19 State of Disaster, Texas courts may now modify or suspend deadlines for civil and criminal cases, except for child-welfare cases, until September 30. In child-welfare cases, the Texas courts may modify or suspend a deadline or procedure imposed by statute, rule or order for a period not to exceed 180 days and extend the dismissal date for any case previously retained on a court’s docket for no longer than 180 days. The 17th Emergency Order reiterates the status quo of following the trial court’s order in possession and access cases. Continue Reading ›

In a Texas custody case, the court is not required to give parents equal periods of possession or visitation just because it appoints the parents as joint managing conservators. Tex. Fam. Code § 153.135. The court is also not required to award rights and duties of conservatorship to each parent equally or both jointly.  The court’s primary consideration should be the child’s best interest. Tex. Fam. Code § 153.002.  Case law has established a non-exhaustive list of factors to be considered in determining the child’s best interest.

A mother recently challenged a court order naming both parents joint managing conservators, but granting the father the exclusive right to determine the child’s primary residence.  The mother petitioned for divorce and moved from Missouri City to Dallas.  The child primarily lived with the mother for the next six years, but the parents sharing custody under temporary orders.

According to the appeals court’s opinion, both parents “contributed to the ongoing discord . . .” The mother failed to tell the father about some appointments or events before they occurred.  She sometimes kept the child from taking calls or made him stop conversations.  She would not allow the father to have makeup time, but sought makeup time for herself when her time was disrupted by bad weather.  The father “berated” the mother when she was late for the exchange, recorded their conversations, and tracked the child through an iPad.  He sometimes ignored the mother, but criticized her frequently for not communicating with him.  The mother testified the father was controlling and manipulative.

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