Articles Posted in Evidence

iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

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imagesIn a Texas divorce case, property acquired during the marriage is presumed to be community property. A spouse claiming property is their separate property must show that it is separate by clear and convincing evidence.  Separate property is generally property that is owned before the marriage, property that the spouse acquired as a gift or inheritance, or property recovered as damages in a personal injury case.  Community property is generally property acquired after the marriage that is not characterized as separate property.

In a recent case, a wife challenged the court’s characterization of certain property as the husband’s separate property.  The wife filed for divorce. The parties agreed they had married in India in 1976, but disagreed on the date they stopped living together as husband and wife.

Husband and Wife Enter into Settlement – But Leave One Issue for Trial

The case went to trial, but, before trial, the parties entered into a Mediated Settlement Agreement (“MSA”).  In the MSA, the parties agreed their community property located in India would be divided by Indian courts.  The parties agreed to the characterization and division of everything except two pieces of land in India, referred to as the “Fifteen-Cent” property and the “One-and-a-half-Acres” property. The MSA stated they would “defer to characterization and confirmation of separate property” of those two parcels to the trial court.

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iStock-1139699594When a court considers Texas child custody and visitation, the child’s best interest is the primary concern.  The court considers certain factors, including what the child wants, the child’s current and future needs, any danger to the child, the parents’ respective abilities, programs available, the parents’ plans for the child, stability, any acts or omissions indicating the relationship between the parent and child is not proper, and any excuse for those acts or omissions.

A father recently appealed a denial of his petition for modification and grant of the mother’s counterpetition.  At the time of the divorce, the trial court ordered the parties not to move from a specific area without a modification order or written agreement filed with the court.  Neither parent was given the exclusive right to designate the child’s primary residence.  Nonetheless, both parents moved outside of the geographical boundary after the divorce.

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When a spouse petitions for a Texas divorce, the other spouse must file an answer.  If the other spouse fails to do so, the court may render a default judgment.  Under certain circumstances, however, the other spouse may get the default judgment overturned.  In a recent case, a husband sought to overturn a default judgment entered against him.

According to the Texas Supreme Court’s opinion, the wife filed for divorce.  The trial court granted her motion for alternative service at the home of her husband’s mother.  The trial court ultimately entered a no-answer default judgment the following January.

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In some Texas divorce cases, a party fails to file an answer to the divorce petition or otherwise participate in the divorce proceedings in any way.  When a court divides property in a Texas divorce, it must do so in a “just and right” manner. TEX. FAM. CODE ANN. § 7.001.  However, to do so, the court must have sufficient evidence of the value of the community estate, even if one of the parties does not participate in the proceedings.  Even if their spouse fails to file an answer, the petitioner in a divorce case must present evidence supporting the material allegations in the petition.  If a trial court divides the property without sufficient evidence of the value of the assets to make a just and right division, the division may be subject to reversal on appeal, even if the appealing spouse failed to respond and the court issued a default judgment.

In a recent case, a husband challenged a default judgment granting his wife a divorce and dividing their property, arguing there was insufficient evidence to support the property division.

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There is a strong presumption in Texas family law that it is in the child’s best interest for a parent to be awarded custody over a non-parent. In a recent case, a father appealed a judgment naming him joint managing conservator with the child’s maternal grandmother. A central issue in the case was the father’s argument that he should have been appointed the child’s sole managing conservator based upon the parental presumption.

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Evidence is important in any case, including a Texas child-custody dispute.  In a recent case, a father challenged a trial court’s divorce decree based on the exclusion of certain evidence at trial.iStock-818445486

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