Texas Divorce Attorney Blog

Texas Supreme Court Reverses and Remands Custody Case for Child Interview

Published on: August 14, 2023 | by Brandon Joseph

In some Texas custody disputes, a parent may want the court to hear an older child’s preferences regarding conservatorship or possession. Upon application of a party in a suit affecting the parent-child relationship, the court is required to interview a child 12 or older in chambers to determine their wishes regarding conservatorship or the exclusive right to determine their primary residence, in a nonjury trial or hearing. If the child is under 12, the court may interview them, but is not required to do so. Tex. Fam. Code § 153.009(a). A mother recently appealed a judgment awarding the father the exclusive right to designate the children’s primary residence after the court declined her request for an interview.

Trial

According to the opinion of the Supreme Court of Texas, the father petitioned for divorce in 2017. He requested the court interview the children. The mother, however, demanded a jury trial and paid the associated fee. Mother subsequently withdrew the jury demand. Her attorney stated she did so to benefit from the interview provision in Section 153.009(a), and the mother ultimately testified similarly.

The mother’s attorney requested an in-chambers interview with the oldest child pursuant to Section 153.009(a) by letter emailed to the court coordinator. The attorney also repeatedly called the coordinator to try to get the interview scheduled. The attorney also requested the interview again at trial, explaining the mother had withdrawn her demand for a jury trial to allow for the interview. The court, however, denied the request because the mother had not filed a written motion. The oldest child was 13 at the time of the trial.

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.

Texas Court Awards Husband Frozen Embryos in Divorce

Published on: July 26, 2023 | by Francesca Blackard

Fertility treatments and assisted reproductive techniques can be a miracle for many families. They may also, however, lead to complicated family law issues. A former wife recently appealed a judgment awarding frozen embryos to her former husband in the divorce.

According to the appeals court’s opinion, the parties utilized IVF treatment and still had three embryos in cryogenic storage at the time of the divorce.

The parties signed a “Consent Form Cryopreservation of Embryos” (“Agreement”) that addressed the storage of the embryos and made them subject to the disposition of the husband if the parties divorced.

Texas Appeals Court Upholds Post-Divorce Enforcement/Clarification Order

Published on: July 17, 2023 | by Kelly McClure

A Texas divorce decree that is final and unambiguous and addresses all of the marital property may not be re-litigated. The court may, however, enforce the property division or enter a clarifying order if the decree is ambiguous. The trial court may not, however, amend, modify or change the substantive property division once its plenary power has expired. A husband recently challenged an enforcement/clarification order requiring him to sign certain documents and extending the time the wife had to refinance the home.

According to the appeals court’s opinion, the parties got divorced in August 2021. Pursuant to the agreed judgment, the wife was awarded the marital home, contingent on refinancing. She was required to pay the husband $75,000 within 15 days of refinancing the note. If she failed to refinance by February 1, 2022, then the home was to be listed with a real estate broker with experience in the area and sold at a mutually agreed-upon priced. The wife would keep 52% of the net proceeds and the husband would get the other 48%.

The wife was ordered to execute a deed of trust to secure owelty of partition and a lien note. The husband was ordered to execute a warranty deed. These documents were to be signed by 5:00 p.m. on the date the trial court signed the agreed divorce decree.

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 Appeals Court Reverses Order Granting Grandparents Visitation

Published on: July 6, 2023 | by Kate Mataya

The U.S. Supreme Court held in Troxel v. Granville that parents have a fundamental right to make decisions regarding the care custody and control of their children. There is a presumption under Texas family law that being raised by their biological parents is in a child’s best interest. Additionally, Texas law presumes that a fit parent acts in their child’s best interest. Essentially, it is presumed that a fit parent should decide whether a grandparent should have visitation with the child. In addition to other requirements, a grandparent seeking possession or access to a grandchild under Tex. Fam. Code § 153.433(a) must overcome that presumption by showing by a preponderance of the evidence that denying visitation would significantly impair the child’s health or emotional well-being. Tex. Fam. Code § 153.433(a) applies when the grandparent is the parent of the child’s parent who has been incarcerated for the three month period before the petition is filed, has been found incompetent, is deceased, or does not have possession of or access to the child.

A mother recently challenged a trial court’s order granting the paternal grandparents possession of and access to her children, arguing there was no evidence the children’s physical health or emotional wellbeing would be significantly impaired if it was denied.

Grandparents Petition for Visitation

The children’s father sadly died in December 2020. The appeals court’s opinion described a close relationship between the children and their paternal grandparents before their father’s death. In fact, the parents and one of the children had lived with the grandparents for more than four years and then moved next door.

Texas Appeals Court Reverses Children’s Name Change

Published on: June 27, 2023 | by Brandon Joseph

A trial court generally cannot grant relief that was not requested by the parties in a Texas family law matter. Relief must generally conform to the pleadings, though in some cases an issue may be tried by consent of the parties. A mother recently challenged a trial court’s order changing the children’s name to something different from what she had requested when the father had not participated in the proceedings.

Mother Petitions for Name Change

In January 2022, the trial court adjudicated parentage and named the mother sole managing conservator of the children, who were born in 2019 and 2020. The children’s last names were structured as “[father’s last name] [mother’s last name].” The mother then petitioned to remove the father’s last name from the children’s last names, alleging he had not been in their lives or supported them and that the change was in the children’s best interest.

The trial court held two hearings, but the father failed to answer or participate. The mother testified that she wanted to change the children’s name to avoid inconvenience and confusion. She said that she had extended family in the area who shared her last name and that she did not plan to change her name. She also testified the change was in the best interest of the children and that she had not requested it to try to alienate the father. The birth certificates showing the children’s names were admitted as evidence.

Texas Appeals Court Vacates Property Division After Husband Revokes Consent to Agreed Division

Published on: June 26, 2023 | by Kelly McClure

When parties to a Texas divorce can reach an agreement on property division or other issues, they may be able to resolve their case more efficiently and with less hostility than can occur with prolonged litigation. In some cases, however, a party may learn information after initially agreeing to a division that that changes their position. When parties consent to an agreed judgment, their consent must exist when the court renders the judgment. They are able to revoke consent until the judgment is rendered. An agreed judgment cannot be rendered if a party has withdrawn consent. In a recent case, a husband appealed an “agreed” judgment, arguing he had withdrawn his consent before the court rendered the judgment.

According to the opinion of the appeals court, the parties got married in 2005. The wife filed for divorce in early August 2022. She expressed a belief the parties would reach an agreement on the property division, but asked for a just and right division if they did not do so. A couple of months later, she filed an affidavit stating she and the husband had entered an agreement for division of the debts and property. She further stated she had submitted an agreed decree that had been signed by both parties and contained the agreement. She asked the court to approve the agreement.

The husband filed a counterpetition, alleging the wife had breached her fiduciary duty and committed constructive fraud, waste, and conversion. He alleged she conveyed more than her own share of the community estate to enrich herself and defraud him. He alleged damages of about $100,000. He asked the court to set aside the transfer and award him damages.

Legal Description of Property Controls Over Address in Texas Husband’s Quitclaim Deed to Wife

Published on: June 21, 2023 | by Kate Mataya

When one spouse transfers property to the other spouse by deed, there is a rebuttable presumption the property was gifted to the other spouse as separate property. A deed must contain a sufficient description of the property. In some cases, there may be mistakes or conflicting information in the deed. When a court interprets a deed, it must determine the parties’ intent as expressed in the deed. A wife recently challenged a court’s interpretation of a quitclaim deed and the resulting characterization of the property based on a deed that stated the address for one tract of land but the legal description of another.

The husband bought a house and 23 acres and paid off the mortgage before the marriage. He also sold two of those acres and a mobile home before the marriage. The parties lived in the house on the 21-acre lot after the marriage. They subsequently bought back the two-acre tract and the mobile home.

Quitclaim Deed

Before he petitioned for divorce, the husband signed a quitclaim deed that stated the address of the 21-acre tract, but the legal description of the two-acre tract. The quitclaim deed described the property as 2 acres and identified the make, model, and serial number of the mobile home. The wife asked the court to characterize the 21 acres and house as her separate property based on the quitclaim deed. She argued the deed conveyed the house and 21 acres to her, but the husband contended that it referred to the two-acre tract and mobile home.

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 ›