Child Interviews and Extracurricular-Activity Expenses in Texas Custody Case

5thingsdivorcecourt_header-300x163Tex. Fam. Code § 153.009(a) requires the court in a Texas custody case to interview a child who is at least 12 years old to determine their wishes regarding custody, “on the application of a party. . . “ A father recently challenged a court’s failure to interview the children in a custody case.

The mother petitioned to increase child support for the parties’ three teenage children and require the father to pay their extracurricular expenses.  The father asked to be named the primary managing conservator with the exclusive right to designate the children’s primary residence.

The parties stipulated that $2,760 was the amount the father should pay under the Texas Family Code’s “guidelines.” The trial court ordered the father to pay not only $2,760 monthly, but also half of the children’s extracurricular expenses. The trial court also denied his request to have the exclusive right to designate the children’s primary residence.

Father Appeals Child-Support Ruling

The father appealed, arguing the court abused its discretion when it failed to interview the children.  He argued he had requested an interview in a pretrial motion, during opening, and during closing at trial.

The mother argued the father had failed to make an offer of proof and therefore could not show harmful error.  To reverse a judgment on the ground of an error of law, the appeals court must conclude the error “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeals.” Tex. R. App. P. 44.1(a). An error based on an exclusion of evidence must affect a substantial right, with the substance of the evidence made apparent from context or made known by offer of proof.  Tex. R. Evid. 103(a)(2). The husband argued his offer of proof was his attorney’s statement  that they believed the children would testify they wanted to live with their father.

Appeals Court Found No Harm in Failing to Interview Children

The appeals court found the father failed to show any error was harmful.  Information received by the trial court in an interview with the children is “strictly supplemental. . .” The statute states that “[i]nterviewing a child does not diminish the discretion of the court in determining the best interests of the child.” Tex. Fam. Code § 153.009(c).

The appeals court found substantial evidence supported the trial court’s decision for the mother to retain the right to designate the primary residence.  The trial court had considered the appropriate factors to determine the children’s best interest. The mother had been the children’s primary caregiver. The father admitted he did not go to the children’s medical appointments or speak with their teachers. He admitted to disparaging the mother in front of the children.

The father argued the mother did not provide a stable home.  The mother testified she did not want the children to see an argument with her husband and asked the father to come get them.  She testified she and her husband were now in marriage counseling.

The trier of fact is responsible for determining credibility and the weight of evidence.  The appeals court could not conclude the court’s failure to interview the children probably caused the rendition of an improper judgment. It therefore did not constitute harmful error.

Appeals Court Considers Above-Guideline Child-Support Award

The husband also argued the trial court abused its discretion when it ordered him to pay half the extracurricular expenses. He argued in doing so, the court had not ordered a specific amount of child support, but instead gave the mother discretion to make decisions about extracurricular activities. He argued the court ordered him to pay an amount greater than the guidelines without evidence of the “needs” of the children.

The mother argued trial courts regularly order parties to split the cost of expenses in excess of monthly child support, but did not provide any legal support for the argument.

There is one statute for calculating child support when the obligated party’s net monthly resources are $9,200 or less and another when the net monthly resources exceed that amount.  The parties stipulated the father should pay child support pursuant to Tex. Fam. Code § 154.125, which is applicable when net monthly resources exceed $9,200.  The amount set forth in the guidelines is presumed to be reasonable and an order based on the guidelines is presumed to be in the child’s best interest.  The appeals court therefore presumed the monthly child support award was in the children’s best interest.

Courts may deviate from the guidelines if the evidence rebuts the presumption the amount in the guidelines is in the child’s best interest. The court must consider the relevant factors, including the children’s needs.

The father argued there was no evidence regarding the children’s needs.  The mother testified the children were involved in soccer and band and provided evidence of the expenses she had incurred related to those activities. There was not any other evidence regarding the children’s needs.

The mother had broad discretion under the order to sign the children up for extracurricular activities.  There were no restrictions on the amount of expenses. The appeals court held the trial court had abused its discretion and reversed the part of the order requiring the father to pay half the extracurricular expenses. The appeals court reversed that portion of the order and remanded the case to the trial court.

Navigating Child-Custody Laws Can be Daunting – Hire McClure Law Group to Assist You

The father in this case was unable to show that the trial court’s failure to interview the children was “harmful error,” but he was successful in challenging the extracurricular expenses because there was insufficient evidence of the children’s needs. Additional evidence or parameters limiting the mother’s discretion may have led to a different result.  If you are facing a custody dispute, the experienced Texas custody attorneys at McClure Law Group can help. Schedule a consultation by calling 214.692.8200.



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