Joint Managing Conservators Do Not Have to Have Equal Possession in Texas Custody Order

5thingsdivorcecourt_headerA court should consider a number of factors in deciding a Texas custody case.  Even when the court determines the parents should be joint managing conservators, the court does not have to award equal periods of possession and access to the child to each parent. Tex. Fam. Code § 153.135.  Under Texas law, there is a rebuttable presumption that the standard possession order serves the child’s best interests.  Tex. Fam. Code § 153.252.  A father recently challenged the divorce decree giving the mother the right to designate the child’s primary residence and awarding him the standard possession order.

Trial Court Initially Awards Father Primary Custody

According to the appeals court’s opinion, the parties’ child was born about three months after they married in 2014.  The parties separated in 2016 and the mother petitioned for divorce in March 2017. The court signed temporary order giving the father the exclusive right to designate the child’s primary residence in Travis County.

At the custody hearing, there was evidence the mother had sustained a serious brain injury the previous year.  There was significant testimony about her mental health before and after the separation and about how her injury affected her ability to take care of the child.

Trial Court Later Awards Mother Primary Custody

The court ultimately appointed the parents joint managing conservators with the mother having the exclusive right to designate the child’s primary residence. She was also given certain decision-making rights, “after meaningful consultation” with the father.  The father was to have access to the child pursuant to a standard possession order. He appealed.

On appeal, the father argued the court abused its discretion in giving the mother the right to designate the child’s primary residence, to consent to medical treatment, to consent to mental health treatment, and to make decisions regarding the child’s education.  He also appealed the standard possession order.  He argued there was insufficient evidence supporting any of these awards.

The father had testified about text messages where the mother threatened to kill herself and the child if he did not call or come home right away. He said she also sent a text stating she had left the child home alone.  He testified she had cut herself repeatedly.  He testified she once told him she drank bleach and, at another time, that she took an excessive amount of ibuprofen.  He had not witnessed her doing these things and was not aware of her seeking treatment for self-harm injuries.  He further testified that she had not threatened to hurt herself since the separation.

There was evidence the father had been arrested for DWI shortly before the hearing on the temporary orders. He did not disclose the arrest at the hearing, in response to a request for production, or to the psychologist who performed the psychological evaluations.

The mother testified the father had been controlling.  She also testified that the father enrolled the child in daycare without telling her and failed to respond to her texts about the child.

The mother testified she had previously used drugs and abused alcohol, but no longer used either. She said she was not serious about hurting herself or the child but admitted to sending the texts. She also said she did not drink bleach or improperly take over-the-counter medication to harm herself, but had wanted attention.  She did admit to cutting, but said she had not done that since July 2016.

The mother testified she had been seeing a therapist for about three years, and was taking medication for depression and anxiety.  The therapist testified she had diagnosed the mother with borderline personality disorder, but the mother did not meet the criteria for that disorder at the time of the testimony. She said the mother had made improvement and developed “a positive outlook on life.”

The mother testified that she still had short-term memory and attention issues after the accident.  She said she could not drive and needed treatment for her fine motor skills. The mother lived with her mother and worked at her mother’s business.

The psychologist testified the mother used drugs and alcohol to cope with depression and anxiety before her accident, but he thought she was now coping in an appropriate manner. He also stated that he was more concerned about self-harm and attention-seeking than her harming the child. He testified that he believed she was making progress in her recovery from the accident and thought she could meet the child’s basic needs.

The psychologist testified that the mother and father seemed unable to have productive communication based on the communication he had seen.  He recommended counseling for the father to work on a communication style conducive to parenting and co-parenting.  He also testified he would have had concerns about alcohol abuse if he had known about the father’s arrest when he performed the evaluation.

Appeals Court Finds that Evidence, While Conflicting, Supported Trial Court’s Decision

The appeals court found there was sufficient evidence to support the trial court’s finding it was in the child’s best interest to give the mother the right to determine her primary residence and make decision about medical and psychological treatment and education after consulting with the father.

The appeals court also found there was sufficient evidence supporting the standard possession order for the father and the presumption it was in the child’s best interest had not been rebutted.

There was no abuse of discretion in the court’s conservatorship and possession order. The appeals court did, however, modify the decree to remove the language stating the attorney’s fees awarded to the mother constituted “additional child support.”

Custody Cases are Fact-Specific; Call McClure Law Group Today for Personalized Advice

Custody cases can be heavily fact specific.  You need a skilled Texas custody attorney on your side if you are involved in a custody dispute.  Call McClure Law Group at 214.692.8200 to set up a consultation.

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