Child Custody

Conditions and Restrictions Related to Alcohol and Substance Abuse in Texas Custody Case

Published on: June 28, 2024 | by Kelly McClure

In a Texas custody case, the court must designate who will determine the child’s primary residence and establish the geographic area within which the child’s primary residence must be or specify that there is no geographic restriction. Tex. Fam. Code § 153.134(b)(1). The court bases its determination on the specific facts of the case. The trial court also has discretion to impose restrictions on a parent’s possession and access to the child that are in the child’s best interest. A father recently challenged a number of issues related to his possession and access to his children.

According to the opinion of the appeals court, the parties married in 2017 and had two children together. The mother petitioned for divorce in 2020, requesting the father have supervised possession of the children, submit to random alcohol and drug testing, and use a Soberlink monitoring device. A number of witnesses testified, including a custody evaluation expert and a co-parenting therapist, both of whom the court found credible. The final divorce decree named the parties joint managing conservators but gave the mother the exclusive right to designate the children’s primary residence with a geographic restriction of Williamson and contiguous counties. The order provided for a step-up possession schedule for the father and limited both parents’ romantic partners being around the children.

Geographic Restriction

The father appealed, challenging the geographic restriction. He argued it should be limited to Williamson County without including contiguous counties. He argued that it could be very difficult for him to attend activities and appointments if the children lived an hour away.

Texas Appeals Court Affirms Modification Naming Father Sole Managing Conservator

Published on: June 14, 2024 | by Kelly McClure

To modify a Texas custody order, the court must find that there has been a material and substantial change in circumstances and that the modification would be in the children’s best interest. In a recent case, a mother challenged the court’s finding that it was in the children’s best interest for the father to be the sole managing conservator following involvement by the Department of Family and Protective Services.

History

When the parents divorced, they were named joint managing conservators and the mother was awarded the right to designate the children’s primary residence.

The mother testified that the father did not regularly visit the children or telephone them. She said she “moved a lot” with the children and did not communicate with them. She was homeless for a week or two. The children stayed in with their father’s mother while the mother stayed in her car.

Appeals Court Addresses Family Violence, Sole Conservatorship, and Child Support in a Texas Custody Case

Published on: May 27, 2024 | by Francesca Blackard

The Seventh District Court of Appeals recently considered a case involving significant issues of custody and child support. The trial court had appointed the father sole managing conservator and ordered him to pay child support to the mother. Both parents appealed.

Sole Managing Conservator

The mother argued the trial court erred in finding an incident in June 2021 prevented it from appointing both parents joint managing conservators. According to the appeals court, the mother pleaded guilty to misdemeanor assault on the father as a result of the referenced incident. The trial court found a history of abuse by the mother against the father and that the mother pleaded guilty to misdemeanor assault on the father regarding an incident on or about June 13, 2021. The court named the father sole managing conservator and the mother possessory conservator. The court stated in its conclusions of law that “[b]ecause Petitioner pleaded guilty to misdemeanor assault of Respondent, the Court cannot appoint the parties joint managing conservators.” The mother argued, based on this statement, that the trial court had concluded it was required to find a history of abuse based only on the guilty plea.

Tex. Fam. Code § 153.004(b), prohibits a court from appointing joint managing conservators there is credible evidence “of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . .” The statute does not define the meaning of “history.” The appeals court noted that it had not held that a single instance of physical abuse against the other parent necessarily constitutes a history of abuse, but had ruled that the trial court has the discretion to conclude that a single incident can constitute a history. The appeals court therefore concluded that the trial court could have found the mother’s guilty plea to a misdemeanor assault charge sufficient to prove the existence of a history of abuse against the child’s father.

Texas Court Reopens Evidence After Custody Trial

Published on: April 29, 2024 | by Kelly McClure

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.

How Substance Abuse Affects Parental Rights and Custody in Texas

Published on: April 19, 2024 | by Kelly McClure

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.

Texas Appeals Court Concluded Father Did Not Have Sufficient Notice for Contempt Order

Published on: February 28, 2024 | by Kelly McClure

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.

Texas Court Cannot Consider Extrinsic Evidence in Collateral Attack on Custody Jurisdiction

Published on: February 25, 2024 | by Francesca Blackard

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.

Texas Appeals Court Affirms Custody Modification Contrary to Child’s Preference

Published on: February 4, 2024 | by Kelly McClure

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.

Texas Divorce Decree Must Generally Comply with Mediated Settlement Agreement

Published on: January 31, 2024 | by Francesca Blackard

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.

Texas Appeals Court Affirms Modification Making Mother Sole Managing Conservator

Published on: January 29, 2024 | by Kelly McClure

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.