Articles Posted in Child Custody

Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

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Under Texas family law, a child’s parents have certain rights and duties regarding their children, including the right of possession and the right to make certain decisions related to them.  Parents also have the duties to support, care for, and protect their children.  Though in some cases, the parent-child relationship must be established.

In a recent case, a child’s alleged biological father petitioned to establish paternity several years after the child was born. The child’s mother had been married to her husband since 2008.  The child was born in July 2010.  According to the appeals court’s opinion, the mother also had a sexual relationship with the petitioner for about four years, including the approximate period of the child’s conception. The mother told the petitioner he was the child’s biological father during and after the pregnancy.

The husband believed he was the child’s biological father during the pregnancy and for at least the first four years of the child’s life.  The child knows the husband as his father.

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In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue.  In other cases, however, one parent has moved away and there may be a dispute over jurisdiction.  Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody.  The family lived in South Carolina when the child was born, but moved to Texas a few months later.  They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then.  They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas.  He sought the exclusive right to designate the child’s primary residence.  The Texas court entered temporary orders. The father added a divorce petition.

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Texas divorce cases are never easy, but can become even more complicated when one or both parents have mental health problems.  Mental health problems may, but do not necessarily, affect a parent’s competence to testify or participate in the proceedings.  Depending on the nature of the mental health problems, they may also affect the parent’s ability to care for the child.

In a recent case, a mother challenged a trial court’s order appointing the father as sole managing conservator.  According to the appeals court’s opinion, the husband filed for divorce when the child was just eight months old.  The trial court issued a temporary order appointing both parents temporary managing conservators.  The father was working in Las Vegas at the time and was granted possession on weekends when he was in San Antonio, with the mother having the child the rest of the time.  Both parents were ordered to participate in psychological evaluations.

The court limited the mother’s contact with the child to supervised visits after receiving the psychological evaluations.  The child was to live with his paternal grandmother in San Antonio, but granted the father possession when he was in San Antonio.

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It can be very difficult for a non-parent to get custody of a child in Texas custody cases.  A presumptive father may, however, have an advantage over other non-parents.  In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”

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Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved.  In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child.  Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased.  In 2016, the father’s brother filed suit to be named as the child’s primary conservator.  The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order.  The order gave primary possession to the uncle and periodic possession to the mother.  The uncle had the right to request the mother undergo drug testing once a month.  She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice.  The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive.  If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered.  She alleged the uncle did not make the child available to her during her time.  She sought criminal and civil contempt, additional periods of possession, and attorney’s fees.  She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

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Stepparents often develop strong bonds with their stepchildren.  It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child.  Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed.  Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed.  Unfortunately, this section only applies if the parent to whom the stepparent was married dies.  It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living.  In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above.  This section is not dependent upon the biological parent being deceased.  Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.”   As with the other section, the six-month period must end within 90 days before the filing.

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