Articles Posted in Child Custody

iStock-1139699594-300x200When a parent in a Texas custody case fails to comply with a court order, the other parent may petition for enforcement of the court order. The parent seeking enforcement may pursue an order of contempt, which can result in six months’ jail time, a fine of $500 per violation, or both. A father recently appealed a contempt order against him, arguing in part that the trial court failed to inform him of his rights to an attorney and against self-incrimination.

Mother Files Enforcement Action Against Father

Several months after the divorce, each party filed an enforcement petition alleging the other violated the decree.  The mother asked the court to hold the father in contempt, incarcerate him for up to 180 days, put him on community supervision for 10 years, order him to pay a $500 fine for each violation, and award her attorney’s fees. She alleged he failed to provide documents needed to file tax returns, failed to sign documents to transfer property, and repeatedly interfered with her possession of the child.

A flight delay had resulted in the mother losing two days of possession. The other incidents were related to a disagreement regarding the exchange of possession.  Under the decree, the father was required to surrender the child to the mother at the  daycare or school, in the parking lot of a specified grocery store if the daycare or school was closed.  The decree further permitted each party to “designate any competent adult to pick up and return the child. . .” and required either the party or a designated adult to be present for the drop off.

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5thingsdivorcecourt_header-300x163Tex. Fam. Code § 153.009(a) requires the court in a Texas custody case to interview a child who is at least 12 years old to determine their wishes regarding custody, “on the application of a party. . . “ A father recently challenged a court’s failure to interview the children in a custody case.

The mother petitioned to increase child support for the parties’ three teenage children and require the father to pay their extracurricular expenses.  The father asked to be named the primary managing conservator with the exclusive right to designate the children’s primary residence.

The parties stipulated that $2,760 was the amount the father should pay under the Texas Family Code’s “guidelines.” The trial court ordered the father to pay not only $2,760 monthly, but also half of the children’s extracurricular expenses. The trial court also denied his request to have the exclusive right to designate the children’s primary residence. Continue Reading ›

iStock-1175949984A trial court generally has broad discretion in deciding whether to impose a geographic restriction on the child’s primary residence in a Texas custody case.  A geographic restriction limits where the children’s primary residence may be.  As with other aspects of a custody case, the primary consideration is whether the restriction is in the best interest of the child. A geographic restriction can help ensure the child maintains relationships with the non-custodial parent, extended family, and the community.  In some cases, however, a parent may have good reasons to want to move with the child. The Texas Supreme Court has identified a number of factors in determining whether a move is in a child’s best interest: how it would affect relationships with extended family, how it would affect the non-custodial parent’s visitation and communication with the child, whether a meaningful relationship between the child and non-custodial parent could be maintained with a visitation schedule, the child’s current contact with both parents, the reasons for and against the move, the child’s age, the child’s ties to the community, and the child’s health and educational needs. Lenz v. Lenz.

A father recently appealed an order granting the mother the exclusive right to designate the primary residence without a geographic restriction when the mother intended to move out-of-state with the children.

Mother Offered Opportunity in Arizona

The trial court made several findings of fact. The trial court found the parents moved to Austin so the mother could attend graduate school and intended to stay there until she received her PhD. They had agreed to live there temporarily until the mother got a faculty position at a university.  She earned her PhD in 2012.  The parties’ twin children were born prematurely in 2013, and the mother took time to care for them instead of advancing her career.  During the marriage, she only applied for positions in cities where the father would also have potential job opportunities.  They agreed she should apply for a position in Arizona in 2018, but the job was not filled at that time. The parties separated in February 2019 and the mother continued to be primary caregiver.

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iStock-1147846829Grandparents 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.

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iStock-483613578A 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.

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iStock-1147846829A 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.

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5thingsdivorcecourt_headerA 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.

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iStock-1163040189A 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.

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BSgavelx1200-768x432-1The 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.

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iStock-1252096710A 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.

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