Child Custody

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.

Texas Divorce Decree Must Comply with Material Terms of Parties’ Rule 11 Agreement

Published on: February 21, 2023 | by Francesca Blackard

Insurance agent checking policy documents in office.

Parties to a Texas divorce may enter into a Rule 11 agreement to resolve issues in their case. The agreement must be made in open court and entered into the record, or be in writing, signed, and filed with the court. A Rule 11 agreement must be complete in material details and contain all of the essential elements of the agreement. It is an abuse of discretion for a court to enter a judgment that is not in compliance with material terms of the agreement. A mother recently appealed a final divorce decree that she claimed did not comply with the terms of the Rule 11 agreement.

Parties Enter into Rule 11 Agreement

According to the appeals court’s opinion, the parties’ Rule 11 agreement provided they would be joint managing conservators of the two minor children, with the mother being primary for determining their residence with a geographic restriction. The father would continue picking up the daughter from school. The father would have a standard possession order for the son. The son had the option to have dinner at the father’s on Thursday. No alcohol was to be consumed during or for four hours prior to the father’s possession. Child support would be calculated according to the guidelines based on the father’s 2019 Schedule C “unless Schedule C gross receipts are higher for 2020 as filed.”

The parties both moved to enter the final decree, with the mother indicating they had not agreed regarding child support. At the hearing, she argued the parties intended child support to be calculated without subtracting expenses from the gross receipts if the 2020 gross receipts were higher. The father argued different language would have been used if that was the intent. He argued the language required the child support to be calculated according to the guidelines, which require calculation of net income before determining child support.

Texas Court Rejects Mother’s Request to Modify Relocation Restrictions in Recent Divorce Appeal

Published on: February 14, 2023 | by Kelly McClure

iStock-902725964-300x200 When a judge finalizes a Texas divorce involving the custody of children, they will determine which parent has the right to determine where the child will live. However, courts will almost always place certain restrictions on that parent’s ability to relocate. While a relocation restriction may not immediately be an issue for a parent with primary custody, that may change if they obtain employment elsewhere in the state or decide to move for other reasons.

MOTHER UNSUCCESSFULLY SEEKS MODIFICATION ORDER TO PERMIT RELOCATION

In a recent opinion issued by the Fifth District Court of Appeals in Dallas, the court rejected a mother’s request to modify a divorce decree that placed restrictions on her ability to relocate as well as her rights to travel internationally with her son. According to the court’s opinion, Mother and Father divorced in November 2016. At that time, the court gave Mother the right to determine where the child would live, provided it was within Dallas County, Collin County, or Southlake Independent School District. The divorce decree also required either parent to provide written notice to the other if they intended to travel outside the United States with their son.

In July 2017, Mother married a man who lived in Oklahoma. Mother started to spend as much time as possible in Oklahoma, and she would often take her son. Subsequently, Mother sought modification of the initial divorce decree in hopes of being able to relocate. Father filed a counter-petition, hoping to be named as their son’s conservator so he could keep the child in Dallas County, Collin County, or Southlake Independent School District.

Texas Court Prohibits Parents from Communicating

Published on: February 11, 2023 | by Kelly McClure

iStock-1163040189-300x200 Texas has a public policy to assure frequent and continuing contact between children and “parents who have shown the ability to act” in the children’s best interest. Tex. Fam. Code § 153.001(a). In some circumstances, however, parents are not able to effectively communicate and co-parent. In a recent case, the appeals court upheld a trial court order restricting the parents’ communication with each other and with the children while in the other parent’s care.

According to the appeals court, the agreed final divorce decree appointed the parents joint managing conservators. It gave the mother the exclusive right to designate the primary residence of the children and receive child support. Both parties had the right to consent to non-invasive medical and dental care and the right to consent to invasive procedures after meaningful consultation with the other.

Both Parents File Competing Motions for Enforcement and Modification

The mother moved for enforcement alleging the father had kept the children several days beyond his spring break possession.

The father filed his own enforcement motion, alleging the mother failed to maintain insurance, provide information required to submit a health insurance claim, pay uninsured health expenses, and notify him of activities and medical appointments. He also petitioned for modification.

Showing a Material and Substantial Change of Circumstances for Texas Custody Modification

Published on: February 9, 2023 | by Francesca Blackard

iStock-902725964-300x200 A court may modify a Texas custody order if doing so is in the child’s best interest and there has been a material and substantial change in circumstances. The party seeking modification must show the conditions at the time of the prior order and the subsequent changes. To determine if there has been a substantial and material change, the factfinder must be able to compare historical and current evidence. A mother recently challenged a custody modification, arguing the father had not presented evidence of the circumstances at the time of the divorce.

According to the appeals court’s opinion, the 2018 agreed divorce decree appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.

The father petitioned for modification and the exclusive right to designate the children’s primary residence after the mother’s nanny told him the stepfather was abusing them.

Texas Child Support for Joint Managing Conservator

Published on: January 16, 2023 | by Kelly McClure

iStock-531351317-300x200 Texas family law presumes that is in the child’s best interest for both parents to be appointed joint managing conservators. Tex. Fam. Code § 153.131(b). When the court appoints joint managing conservators, it must give one the exclusive right to decide the primary residence of the child. Tex. Fam. Code 153.134(b)(1). The court may order a joint managing conservator to pay the other joint managing conservator child support. Tex. Fam. Code § 153.138. In both custody and child support determinations, the trial court’s primary consideration must be the best interest of the child. In a recent case, a father appealed a court’s custody and child-support determinations.

Texas Office of the Attorney General Files Paternity Suit

The Office of the Attorney General petitioned to establish the parent-child relationship, asking the court to determine the child’s parentage and order conservatorship, possession, access and support.

The father testified he earned $25 per hour working as a contractor, but the availability of the work varied. At the time of hearing, he worked between 32 and 60 hours per week. He also testified he had the child the majority of the time and requested the right to establish the child’s residence, but he had not filed paperwork to be named primary custodian. The father testified his parents kept the child during the day. He said he spent a lot of time at their house and went home after putting the child to bed.