Child Custody

Texas Appeals Court Reverses Summary Judgment in Custody Modification Case

Published on: August 6, 2023 | by Francesca Blackard

Generally, when a parent seeks modification of a Texas custody or visitation order, they must show that they modification would be in the child’s best interest and that there has been a material and substantial change in circumstances since the earlier of the prior order’s rendition or the date the mediated or collaborative law settlement agreement upon which the prior order was based was signed. Tex. Fam. Code 156.101. Whether there have been material and substantial changes is a significant issue in many modification cases. In a recent case, a father challenged an order granting a no-evidence summary judgment in favor of the mother and disposing of his claims for modification.

Pursuant to the parents’ mediated settlement agreement and agreed order, neither had the exclusive right to designate the primary residence of the child, but instead each parent had the right to establish the primary residence during their possession periods within 15 miles of the child’s school. The mother, however, was permitted to establish the primary residence during her possession at her home until she moved. Possession alternated weekly during the school year and every two weeks during the summer break.

Father Seeks Modification

In January 2021, the father moved to modify the order, alleging material and substantial changes in circumstances. He requested the exclusive right to designate the child’s primary residence and to make a number of decisions, including to enroll the child in team sports. He also asked that the mother be enjoined from enrolling the child in extracurricular activities that would occur during his possession. He also asked for the right of first refusal and an expansion of the geographic restriction to two counties.

Make-Up Time in Texas Possession and Access Enforcement Actions

Published on: July 14, 2023 | by Kate Mataya

When a parent is denied court-ordered possession or access by the other parent, the court has discretion to order additional periods of possession or access to make up for that time. Tex. Fam. Code § 157.168. These additional periods of possession of access must be the same type and duration as what was denied, may include weekends, holidays, and summer, and must happen by the second anniversary of the date possession or access was denied. A father recently challenged an enforcement order that did not award him make-up time for the time he was denied.

When the parties divorced, the court appointed them joint managing conservators of the children and granted them equal possession and joint authority for decision-making.

Enforcement Action

The father filed an enforcement motion in September 2020, alleging the mother failed to turn the children over to him twice. He make-up time as well as attorney’s fees and costs. He subsequently added twelve more alleged violations occurring after his original enforcement motion was filed. He also alleged the mother did not get his agreement or inform him that the daughter changed schools.

Texas Presumption of Paternity after Termination of Someone Else’s Parental Rights

Published on: June 13, 2023 | by Kate Mataya

Under Texas family law, there are several ways to establish a parent-child relationship between a man and a child, including an unrebutted presumption, an acknowledgement of paternity, adjudication of paternity, adoption, or the man consenting to assisted reproduction resulting in the birth of a child. A mother recently challenged her former husband’s standing to bring a Suit Affecting the Parent Child Relationship (“SAPCR”) and the trial court’s adjudication of him as the child’s father.

The mother gave birth to the child, identified as “Luke” in the appeals court’s opinion, a month after her marriage to “Justin.” The mother identified another man as the child’s biological father and Justin admitted he was not the child’s biological father.

According to the opinion, the other man’s parental rights were terminated in September 2011 pursuant to an “Order of Termination.”

Justin lived with the child and held himself out to be the child’s father. The mother gave birth to a daughter, identified in the opinion as “Gracie,” in August 2012. Continue Reading ›

Texas Grandmother Awarded Custody

Published on: May 30, 2023 | by Kelly McClure

Texas family law only allows non-parents to seek custody of children if they meet certain statutory requirements. For example, a grandparent or certain other relatives may petition for managing conservatorship if doing so is necessary because the child’s present circumstances at the time suit was filed would significantly impair their health or emotional development. Tex. Fam. Code Ann. § 102.004(a)(1).

The parents had an on-and-off relationship for several years, according to the appeals court’s opinion. Both parents and the maternal grandmother had lived in Colorado. The mother, who was pregnant with their second child, moved to Texas in late 2017 with the older child. The grandmother followed in 2018. The father remained in Colorado.

The mother was killed in a car accident in May 2019. The father filed a petition for writ of habeas corpus, alleging the grandmother was illegally holding them. His petition was denied.

Texas Stepfather Has Standing to Seek Custody after Mother’s Death

Published on: May 25, 2023 | by Kelly McClure

iStock-1147846829-300x200 Non-parents have limited rights in seeking Texas custody or visitation. In some circumstances, however, stepparents actively parent their stepchildren. In a recent case, a stepfather challenged a court order awarding custody of his stepchild to the child’s maternal grandparents after the death of the mother.

Relationship with the Mother

According to the appeals court’s opinion, the mother was pregnant when she started dating and eventually moved in with the stepfather in 2006. The stepfather was present for the child’s birth in 2007 and acted as a father figure to the child. The mother filed an Original Petition in Suit Affecting the Parent-Child Relationship (“SAPCR”) soon after the birth. The stepfather was not a party to the case.

The mother married stepfather in July 2007. The stepfather treated the child as his son and was the only father figure in the child’s life. The mother and stepfather had a biological child together in 2010.

Texas Appeals Court Upholds Divorce Decree with No Payment Mechanism or Schedule for Owelty Lien

Published on: May 15, 2023 | by Francesca Blackard

BSgavelx1200-768x432-1-300x169 In dividing property in a Texas divorce, the court must effect a just and right division. If the marital residence is part of the community estate and one party will keep it, the court must address the other spouse’s share of the equity. The court may do this by placing an owelty lien on the property. An owelty lien creates an encumbrance on the property that follows it upon a sale. The lien must be paid before the net proceeds of the sale are distributed to the spouse. In a recent case, a mother challenged a divorce decree that did not include a payment mechanism or schedule for her owelty lien, while the father challenged the specifics of the geographic restriction imposed on the primary residence of the child.

The father asked the trial court to appoint both parents joint managing conservators of their child. He asked neither parent be given the exclusive right to determine the child’s primary residence and that the court impose a geographic restriction. He requested the trial court to divide the estate in a just and right manner. He asked that the mother receive a lien on the marital estate for half of the net equity of the home.

The mother asked for the right to designate the child’s primary residence. She also asked the trial court to award her half the market value of the home.

Fit Parent Presumption in Texas Custody Modification Proceedings

Published on: May 10, 2023 | by Kelly McClure

iStock-170042608-300x200 There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents. Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Courts generally cannot interfere with these fundamental rights of a fit parent. The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence. He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

Texas Appeals Court Overturns Default Judgment in Custody Case

Published on: May 5, 2023 | by Francesca Blackard

iStock-182358076-300x200 When a party in a Texas custody case fails to respond or appear, the court may find they defaulted and enter a judgment in favor of the other party. For a court to enter a post-answer default judgment against a party, however, the pleadings must give the party fair notice of the claim. A mother recently challenged a custody modification, arguing that the father’s pleadings did not specifically request the rights awarded to him by the court.

The trial court originally appointed both parents joint managing conservators with the mother having the right to determine the child’s primary residence without a geographic restriction in 2007. The court also granted the father visitation and ordered him to pay child support.

The Office of the Attorney General (“OAG”) filed a petition in 2020, alleging the father’s financial circumstances had changed and seeking an increase in child support. The father requested a hearing, which was set for March 10.

Texas Appeals Court Affirms Order with No Geographic Restriction on Children’s Residence

Published on: April 29, 2023 | by Kelly McClure

iStock-1139699594-300x200 A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence. The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence. The court’s primary consideration is the child’s best interest. The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs. Lenz v. Lenz.

A mother recently appealed a trial court order naming the father as the conservator with the exclusive right to determine the children’s primary residence with no geographic restriction. The parties got married in 2014 and had two children. The husband was an Army officer, stationed at times in Georgia and Louisiana. He was stationed at Fort Hood in 2018 and the parties bought a home in Belton. The wife started school for nursing in Austin in 2019. They decided the husband would leave the Army in the fall of 2020. The wife told the husband she wanted to separate in January 2020. The husband petitioned for divorce the next month.

The trial court granted the divorce and appointed both parents joint managing conservators, with the husband having the exclusive right to designate the children’s primary residence. The mother appealed.

Texas Court Denies Mother’s Request to Relocate with Child

Published on: February 25, 2023 | by Kelly McClure

iStock-1147846829-300x200 The best interest of the child is the primary consideration in Texas custody matters, but the courts have identified factors to be considered in determining the child’s best interest in certain circumstances. A mother recently appealed a court’s denial of her request to remove a geographic restriction, arguing the court failed to properly balance the appropriate factors.

The divorce decree gave the mother the exclusive right to designate the child’s primary residence with a geographic restriction. It also required both parents to provide the other written notice before taking the child out of the country.

The mother married a man who lived in Oklahoma. She ultimately petitioned for modification and requested removal of the geographic restriction. The father believed she had already moved to Oklahoma and sought the right to designate the child’s primary residence.