Child Custody

Texas Joint Managing Conservators Presumption May Be Rebutted with Credible Evidence of Abuse

Published on: May 21, 2020 | by McClure Law Group

Texas family law contains a presumption that it is in children’s best interest for the parents to be appointed joint managing conservators. If there is credible evidence of a history of child neglect or physical or sexual abuse by one parent against the child the court may not appoint both parents joint managing conservators. Tex. Fam. Code § 153.004. In a recent case, a mother challenged the appointment of both parents as joint managing conservators when there were allegations of abuse against the father.

The parents had five children together. The mother filed for divorce in 2016. The trial court appointed the parents joint managing conservators of the four minor children and granted the father the right to designate their primary residence. The mother appealed, arguing the court erred in naming them managing conservators when there was credible evidence of a history or pattern of abuse. She also challenged the admission of certain evidence and testimony.

The mother argued that testimony from pre-trial hearings, the father’s trial testimony, and his invocation of the Fifth Amendment during discovery constituted credible evidence. The appeals court found, however, that the trial court had never actually admitted the pre-trial hearing transcripts into evidence and the testimony could therefore not be used to challenge the trial court’s order.

Texas Appeals Court Upholds Court Order Granting Grandparents Custody

Published on: May 7, 2020 | by McClure Law Group

Under Texas family law, there is a presumption that one or both parents should be named managing conservator of a child in an original suit for custody. If, however, the child’s health or emotional well-being would be significantly impaired, the court may appoint a non-parent if doing so is in the child’s best interest. This presumption can make it difficult for non-parents to gain custody. A mother recently challenged an order giving her child’s paternal grandparents custody.

She appealed the order that appointed her and the child’s paternal grandparents as joint managing conservators, with the grandparents having the exclusive right to designate the child’s primary residence. The trial court had issued that order following a petition to modify a 2013 order that granted the grandparents possession and access to the child.

The trial court titled its order “Order in Suit to Modify Parent-Child relationship.” The court found the child had primarily lived with the grandparents, and they had “had actual care, control, and possession of the child with the voluntary consent of [the mother].” The court also found the mother had been arrested for Battery and Cruelty to a Child in an incident involving her teenage daughter. The court found the mother had a history of drug use and instability. The trial court concluded the mother had relinquished care, control and possession of the child to the grandparents, that appointing her as sole managing conservator or giving her the right to determine the child’s primary residence would significantly impair the child’s physical health or emotional development, and that the modification was in the child’s best interest.

Possession Schedules While on the Front Line of COVID-19

Published on: May 5, 2020 | by Kelly McClure

As COVID-19 began to take hold in the United States, Texas and other states took action to ensure that child possession schedules remained in effect and were followed according to court orders. These actions were effective, and as COVID-19 continues to persist in society, parents have adapted to working within court-ordered possession schedules. Now, however, new issues have surfaced regarding the safety and protection of children who are subject to the court-ordered possession schedules. Continue Reading ›

How Will COVID-19 Affect my Possession Schedule?

Published on: March 16, 2020 | by McClure Law Group

As COVID-19 (Coronavirus) becomes more and more ingrained as a daily part of our news cycle, its ability to affect our day-to-day lives continues. As of Monday, March 16, a total of 48 public school districts plus several religious academies across North Texas have elected to extend spring breaks until March 26 or longer. For many parents this begs the question, what do these school closures mean for my possession schedule?

According to the judges in Dallas County, Collin County, Denton County, and Tarrant County, the Standard Possession Schedule should follow the originally published school calendars, meaning there will be no extensions of time periods for parents who have the Spring Vacation possession due solely to recent changes.

As the situation and precautions surrounding this global pandemic continue to evolve, more questions regarding possession schedules and the potential need for additional childcare if schools remain closed will inevitably arise. Disagreements regarding the custody or possession of a child can be stressful and emotionally charged. We recommend consulting with your attorney regarding any questions concerning selecting substitute pick-up or drop-off locations or establishing alternative schedules before making any decisions with your co-parent or ex-spouse.

Texas Appeals Court Upholds Custody Modification Following Alleged Domestic Violence Incident

Published on: March 16, 2020 | by McClure Law Group

Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order. The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing. Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence. The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence. The mother petitioned to modify the order, alleging a material and substantial change in circumstances. She alleged there had been a recent family violence incident involving the father and his fiancée. She also alleged he had a history or pattern of family violence. She asked that he be excluded from possession of their daughter. Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule. The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am. They required the mother to reside either at her parents’ home or her own home. Finally, they ordered that neither parent would provide support to the other.

Texas Appeals Court Upholds Injunction Prohibiting Child Being in Father’s Girlfriend’s Presence

Published on: March 11, 2020 | by Kelly McClure

In some Texas custody cases, the major issue is not the actual custody or visitation. Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person. Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner. A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.

The parents married in 2011 and moved to Austin in 2015. The mother became pregnant in 2017. The father became romantically involved with a co-worker. The father testified he lied to the mother repeatedly to hide the affair. The daughter was born prematurely and stayed in the neonatal intensive care unit for five and a half weeks.

Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship. The mother filed for divorce after she learned of the affair. She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Published on: February 26, 2020 | by McClure Law Group

Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children. In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent. In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage. The mother moved to another town and filed for divorce. The decree required the father to use a Soberlink alcohol monitoring device before and during visitation. The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits. She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity. She also alleged the father failed one of his alcohol tests.

Texas Court Can’t Deny Petition for Modification of Conservatorship for No Material Change without Evidentiary Hearing

Published on: January 29, 2020 | by McClure Law Group

A court may modify a Texas custody order only in certain circumstances. One of the most common reasons to modify an order is that there has been a material and substantial change in circumstances since the previous order and a modification is in the child’s best interest. Whether a material and substantial change has occurred is a question of fact. The party seeking modification has the burden of proving a material and substantial change has occurred.

In a recent case, a father challenged denial of his petition for modification because he had not been allowed to present evidence to support it. A 2010 order named the parents joint managing conservators, with the mother having the exclusive right to designate the child’s primary residence.

The child moved in with his father, his paternal grandmother and his step-grandfather following his mother’s death in 2015. The grandparents filed a petition to modify the 2010 custody order based on the mother’s death, as well as the father’s behaviors they claimed significantly impaired the child’s safety and well-being. The grandparents asked to be named temporary joint managing conservators with the right to designate the child’s primary residence. They also asked the father be denied access to the child, or alternatively, that his access to the child be supervised.

Texas Possession Order Can’t Contravene Jury Verdict on Primary Residence

Published on: January 15, 2020 | by Kelly McClure

A parent may demand a jury trial in a Texas custody case. After the jury decides certain foundational issues, the trial court then determines the specific terms and conditions. The Texas Family Code prohibits the court from contravening the jury’s verdict on certain specified issues, including primary residence. Tex. Fam. Code Ann. § 105.002.

A mother recently challenged a trial court’s possession order on the grounds it contravened the jury’s verdict and was not in the child’s best interest. The father petitioned to be named joint managing conservator with the exclusive right to designate the child’s primary residence when the child was two months old. The jury found the mother should have the exclusive right to designate the child’s primary residence within the state of Texas. Following a bench trial on possession and access, the trial court orally ordered the father would have “week on/week off” possession.

The court issued a final order appointing the parents joint managing conservators with the mother having the exclusive right to designate the primary residence in Texas. The order also granted the father week-on/week-off possession until the child turned five and started kindergarten. In August 2022, the father would be subject to a standard possession order.

Texas Appeals Court Upholds Custody Modification Based on Family Violence

Published on: January 1, 2020 | by McClure Law Group

Generally, a Texas child custody order can be modified only if the modification is in the child’s best interest, and there has been a material and substantial change in circumstances. Family violence may constitute a change in circumstances warranting a modification.

In a recent case, a mother challenged a modification, alleging that there was insufficient evidence of family violence to support a finding of a change in circumstances. When the child was an infant, the parents entered into an agreed order, appointing both of them as joint managing conservators, with the mother having the exclusive right to designate the primary residence.

The mother was subsequently charged with assaulting the father’s girlfriend. In December 2016, the mother took the child to California to live with her mother and other children.