In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence.  Tex. Fam. Code § 153.009(a).  The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest.  Tex. Fam. Code § 153.009(c).  Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it.  In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

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If the parties in a Texas custody case reach a Mediated Settlement Agreement (“MSA”), the court must enter judgment on the MSA.  The MSA is binding if it meets the three requirements set out in Tex. Fam. Code § 153.0071(d).  First, it must prominently state that it is not subject to revocation. It must also be signed by the parties.  Finally, it must also be signed by any party’s attorney who is present at execution.  The court may, however, decline to enter judgment on an MSA if it finds that a party was the victim of family violence which impaired their ability to make decisions and that the agreement is not in the best interest of the child.  Tex. Fam. Code § 153.0071(e-1). Unless this exception applies, the trial court generally does not have the discretion to deviate from the MSA and a party is entitled to judgment on the MSA.  A court’s order may include terms that are necessary to implement the MSA, but it may not substantially alter the MSA. A father recently challenged a divorce decree that did not compart with the parties’ MSA with regards to where exchanges were to occur.

Mediated Settlement Agreement

The parents had two children together during their marriage. They separated in 2020 and signed an MSA in October 2021.  Pursuant to the MSA, the parents would be joint managing conservators and the mother would have the right to determine the children’s primary residence.  The MSA further gave the father a standard possession order which would be an expanded standard possession order if he lived within 50 miles of the children.  It also provided that the exchange location would be at a particular McDonald’s in Huntsville with a pickup time of 8 p.m. and a drop-off time of 5 p.m. as long as the father and children lived in the current locations, with provisions for changing the location if the parents lived in the same county.

At the hearing, the mother’ attorney claimed that the MSA was intended to state that the parties would only meet in Huntsville once a month instead of for all the exchanges. The father’s attorney argued, however, that the provision stated what the father wanted with regard to exchanges.

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A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest.  Tex. Fam. Code § 156.101.  A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation.  He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

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A Texas divorce decree provision that was agreed upon by the parties is construed according to contract principles.  In interpreting the contract, the court considers the entire agreement.  Words are given their plain meaning unless there is an indication the parties intended something else.  A contract is not ambiguous if it can be interpreted with a definite legal meaning.  It is ambiguous if it is subject to more than one reasonable interpretation.  Generally, a court may only consider outside evidence to interpret an ambiguous contract.  A husband recently challenged a trial court’s denial of his petition for enforcement of the property division in his divorce decree.

The parties’ 2017 divorce decree included agreed property-division provisions that awarded the wife a 2.6 acre lot “as her sole and separate property.” The decree divested the husband of all right, title, interest and claim to the lot.  It also included a conditional provision that the wife “begin the process of building” a home on the lot, with the property reverting back to the husband if she failed to comply.  The decree did not include a time by which the wife had to comply nor did it define what was meant by “begin” or “the process of building.” The wife was prohibited from selling the lot for commercial purposes and was required to give the husband a first right of purchase option.

The wife did not complete building a house on the lot and the husband filed a petition for enforcement.  He alleged that the wife had not begun “the process of building a permanent, fixed home structure” on the lot. He asked the court to order her to execute a general warranty deed.

The trial court denied the petition after a hearing and the husband appealed. The husband argued on appeal that the decree was ambiguous and that the trial court erred in not clarifying it and enforcing the clarified decree.

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A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019.  The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence  as well as other exclusive rights.  The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision.  The mother did not appear at the hearings, and the court granted the requested order.

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Fit parents have a fundamental right to make decisions regarding child rearing pursuant to Troxel v. Granville.  A non-parent requesting possession or access must establish that they have standing pursuant to the Texas Family Code or the court must dismiss their suit.  Pursuant to Tex. Fam. Code 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denial of possession or access to the child would significantly impair the physical health or emotional well-being of the child.  This allegation and supporting facts are required for the grandparent to show they have standing.

Grandmother’s Petition

A grandmother recently appealed a trial court’s dismissal of her petition for possession or access to her grandchild.  The paternal grandmother had filed suit for possession or access to her deceased son’s child. Because there was no testimony at trial, the appeals court recited the facts as alleged in the grandmother’s petition and affidavit.   The child was born in April of 2020.  Although the child lived with her mother at the time of the appeal, the grandmother alleged the child lived with her for the first seven months after she was born.

In her affidavit, the grandmother alleged the mother was an “unfit parent.”  She stated one of the mother’s friends had molested the mother’s older daughter.  She also stated in the affidavit that the mother left the child with her when the child was two weeks old, but later claimed the grandmother had kidnapped the child.  The grandmother stated she returned the child to avoid prosecution.  The grandmother claimed the mother had been unable to provide for her older child before her younger child was born and that the mother had been physically and mentally abusive to the older child.  The grandmother also stated that the mother was not able to make a “significant contribution” to the child’s upbringing.  The grandmother averred that the mother had once given the child “spoiled formula” and that she was not “properly bathed” at times.  The grandmother also claimed she was better able to take care of the child financially.

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The relief granted by a court generally must conform to the pleadings of the parties, unless the parties consent to try an issue that was not included in the pleadings.  In a recent Texas custody case, a father appealed a court order that he argued not only did not conform to the pleadings, but was also contrary to the court’s findings and not supported by evidence.

The parents lived together for the first two years of the child’s life, but did not get married.  The child lived with the mother after they separated.

The father petitioned for appointment as joint managing conservator with the exclusive right to designate the child’s primary residence.  He also requested a geographic restriction.  Pursuant to a mediated settlement agreement (“MSA”), the court issued temporary orders appointing both parents joint managing conservators with the mother having the exclusive right to designate the child’s primary residence in Fannin and contiguous counties.  The temporary orders also gave each parent the right to consent to medical treatment and education, subject to the other parent’s consent.  The parents shared visitation under the temporary orders, alternating weeks with the child.

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A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed.  Tex. R. Civ. P. 329b.  Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law.  The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree.  The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division.  It may specify the manner of the property division more precisely, but may not change the substantive property division.  A court may order delivery of specific property through its enforcement power.  If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.

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A court must order a just and right division of the marital estate in a Texas divorce.  Once the divorce is final and the property has been divided, the property division generally may not be re-litigated.  The trial court does, however, retain the power to clarify and enforce the division.  Tex. Fam. Code § 9.002; Tex. Fam. Code § 9.008. The court may not alter or change the substantive property division, but may render additional orders to enforce, clarify, assist in implementing, or specify the manner of effecting the property division. Tex. Fam. Code § 9.006.  A former husband recently challenged a trial court’s partial denial of his request for clarification and enforcement.

According to the opinion of the appeals court, the final divorce decree awarded the husband certain personal property, specifically including the outdoor furniture purchased from a particular person and any property the wife had removed from the homestead, including certain dining room furniture and two bronze statues.

Clarification and Enforcement Hearing

The husband petitioned for clarification and enforcement of the property division, alleging the wife had not turned over certain property awarded to him, including two bronze statues, certain patio furniture he had purchased from a specified individual, and certain dining room furniture.  He asked the court to order her to turn them over by a specified date, and to award him their replacement value if she did not.

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The court in a Texas divorce must make a just and right division of the marital estate.  The estate does not have to be equally divided if there is a reasonable basis in the record for an unequal division.  A former husband recently challenged, for the second time, the property division in his divorce.

The First Appeal

In his first appeal, the husband argued the trial court erred in its property division by including the value of a condominium that he claimed belonged to his father.  The appeals court concluded the condominium belonged to the husband, wife, and the husband’s father and that the trial court had erred in including its total value in the community estate.  The appeals court determined including only the two spouses’ interest in the valuation of the community estate would materially affect the property division, it remanded to the trial court for a just and right division.

The trial court signed an order on remand that stated its original community property division was just and right.  Furthermore, the trial court awarded the wife appellate attorney’s fees.

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