Articles Posted in Child Custody

Generally, all evidence in a Texas custody case should be presented at trial.  In some cases, however, the court may decide to reopen evidence pursuant to Texas Rule of Civil Procedure 270.  In a recent case, a mother challenged the court’s custody order after it reopened evidence following the trial.

The only issue at trial was who would be primary conservator and get child support.  The court expressed an intent to give the mother the exclusive right to designate the child’s primary residence at the end of the trial.

The father subsequently moved to reopen evidence, seeking permission to present evidence on the child’s best interest.  He argued the mother had presented evidence of a stable relationship with a person identified by the court as “B.J.,” but misrepresented her relationship and he had not way of knowing this information before trial.  He argued she testified she and B.J. were in a stable relationship and cohabitating without mentioning a new romantic interest.  He argued she had represented her relationship as more stable than his.  He argued the court indicated the decision was close and this evidence could have been a deciding factor.

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Substance abuse can be devastating to families.  Texas family law recognizes the risk to children from parental substance abuse and seeks to protect them.

Termination of Parental Rights

One of the most severe potential consequences of substance abuse is termination of parental rights.  The court may terminate the parental rights of a parent who is the cause of a child being born addicted to alcohol or an illegal controlled substance.  Additionally, a court may order termination of parental rights if it finds by clear and convincing evidence that the parent used a controlled substance in a way that endangered the child’s health or safety and either failed to complete a court-ordered treatment program or continued to abuse a controlled substance after completing a court-ordered program. Tex. Fam. § Code 161.001.

Custody and Visitation

Even when parental substance abuse does not result in termination of parental rights, it can still have a significant result on custody and visitation.  The Texas Family Code includes a stated public policy to both ensure that children have frequent contact with parents who act in their best interest and to provide children with a safe, stable and nonviolent environment.  The primary consideration in custody matters is the child’s best interest.

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Parents sometimes have difficulty getting their child’s other parent to comply with a Texas custody or visitation order.  If a parent fails to comply with requirements to exchange the child, the other parent may seek enforcement of the court’s order, sometimes through contempt.  In a recent case, a father challenged a court’s contempt order.

According to the appeals court’s opinion, the trial court entered a standard possession order in 2012 that set forth where the exchanges were to occur.  When the mother’s possession ended, the exchange occurred at her home.  When the father’s possession ended, it occurred at either his home or the mother’s home, depending upon circumstances set forth in the order.  The trial court signed a modification order on the mother’s motion in March 2017 that changed the exchange location to the police department parking lot.  The modification order also allowed the parties to change the location in writing.  In August 2017, the parties entered a Rule 11 agreement moving the exchange location to a different police department parking lot and the court signed and the court signed an order adopting their agreement.

The mother filed a motion for enforcement by contempt in 2023.  She relied on the original 2012 order and the 2017 modification order. The father moved for a directed verdict because the mother did not plead “the date, the time, and the place of the alleged violations,” but the motion was denied.

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The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Chapter 152 of the Texas Family Code addresses how to determine jurisdiction in custody matters involving more than one state.  Generally, a Texas trial court that made a custody determination consistent with § 152.201 or 152.203 retains continuing jurisdiction until a court makes certain determinations regarding a lack of significant connection to the state or residence.  Tex. Fam. Code § 152.202.

In a recent case, a mother appealed following a modification, arguing the trial court had not acquired custody jurisdiction in the original divorce case because Colorado had subject-matter jurisdiction over the children pursuant to the UCCJEA.

Procedural History

According to the appeals court’s opinion, the trial court entered an agreed final divorce decree in 2017 that named the parents joint managing conservators of their two children.  The mother was awarded the exclusive right to designate the children’s primary residence until they turned twelve, with no geographic limitations.

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In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence.  Tex. Fam. Code § 153.009(a).  The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest.  Tex. Fam. Code § 153.009(c).  Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it.  In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

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If the parties in a Texas custody case reach a Mediated Settlement Agreement (“MSA”), the court must enter judgment on the MSA.  The MSA is binding if it meets the three requirements set out in Tex. Fam. Code § 153.0071(d).  First, it must prominently state that it is not subject to revocation. It must also be signed by the parties.  Finally, it must also be signed by any party’s attorney who is present at execution.  The court may, however, decline to enter judgment on an MSA if it finds that a party was the victim of family violence which impaired their ability to make decisions and that the agreement is not in the best interest of the child.  Tex. Fam. Code § 153.0071(e-1). Unless this exception applies, the trial court generally does not have the discretion to deviate from the MSA and a party is entitled to judgment on the MSA.  A court’s order may include terms that are necessary to implement the MSA, but it may not substantially alter the MSA. A father recently challenged a divorce decree that did not compart with the parties’ MSA with regards to where exchanges were to occur.

Mediated Settlement Agreement

The parents had two children together during their marriage. They separated in 2020 and signed an MSA in October 2021.  Pursuant to the MSA, the parents would be joint managing conservators and the mother would have the right to determine the children’s primary residence.  The MSA further gave the father a standard possession order which would be an expanded standard possession order if he lived within 50 miles of the children.  It also provided that the exchange location would be at a particular McDonald’s in Huntsville with a pickup time of 8 p.m. and a drop-off time of 5 p.m. as long as the father and children lived in the current locations, with provisions for changing the location if the parents lived in the same county.

At the hearing, the mother’ attorney claimed that the MSA was intended to state that the parties would only meet in Huntsville once a month instead of for all the exchanges. The father’s attorney argued, however, that the provision stated what the father wanted with regard to exchanges.

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A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest.  Tex. Fam. Code § 156.101.  A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation.  He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

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A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019.  The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence  as well as other exclusive rights.  The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision.  The mother did not appear at the hearings, and the court granted the requested order.

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Fit parents have a fundamental right to make decisions regarding child rearing pursuant to Troxel v. Granville.  A non-parent requesting possession or access must establish that they have standing pursuant to the Texas Family Code or the court must dismiss their suit.  Pursuant to Tex. Fam. Code 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denial of possession or access to the child would significantly impair the physical health or emotional well-being of the child.  This allegation and supporting facts are required for the grandparent to show they have standing.

Grandmother’s Petition

A grandmother recently appealed a trial court’s dismissal of her petition for possession or access to her grandchild.  The paternal grandmother had filed suit for possession or access to her deceased son’s child. Because there was no testimony at trial, the appeals court recited the facts as alleged in the grandmother’s petition and affidavit.   The child was born in April of 2020.  Although the child lived with her mother at the time of the appeal, the grandmother alleged the child lived with her for the first seven months after she was born.

In her affidavit, the grandmother alleged the mother was an “unfit parent.”  She stated one of the mother’s friends had molested the mother’s older daughter.  She also stated in the affidavit that the mother left the child with her when the child was two weeks old, but later claimed the grandmother had kidnapped the child.  The grandmother stated she returned the child to avoid prosecution.  The grandmother claimed the mother had been unable to provide for her older child before her younger child was born and that the mother had been physically and mentally abusive to the older child.  The grandmother also stated that the mother was not able to make a “significant contribution” to the child’s upbringing.  The grandmother averred that the mother had once given the child “spoiled formula” and that she was not “properly bathed” at times.  The grandmother also claimed she was better able to take care of the child financially.

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The relief granted by a court generally must conform to the pleadings of the parties, unless the parties consent to try an issue that was not included in the pleadings.  In a recent Texas custody case, a father appealed a court order that he argued not only did not conform to the pleadings, but was also contrary to the court’s findings and not supported by evidence.

The parents lived together for the first two years of the child’s life, but did not get married.  The child lived with the mother after they separated.

The father petitioned for appointment as joint managing conservator with the exclusive right to designate the child’s primary residence.  He also requested a geographic restriction.  Pursuant to a mediated settlement agreement (“MSA”), the court issued temporary orders appointing both parents joint managing conservators with the mother having the exclusive right to designate the child’s primary residence in Fannin and contiguous counties.  The temporary orders also gave each parent the right to consent to medical treatment and education, subject to the other parent’s consent.  The parents shared visitation under the temporary orders, alternating weeks with the child.

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