Texas Divorce Attorney Blog

Texas Appeals Court Upholds Custody Modification Following Alleged Domestic Violence Incident

Published on: March 16, 2020 | by McClure Law Group

Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order. The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing. Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence. The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence. The mother petitioned to modify the order, alleging a material and substantial change in circumstances. She alleged there had been a recent family violence incident involving the father and his fiancée. She also alleged he had a history or pattern of family violence. She asked that he be excluded from possession of their daughter. Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule. The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am. They required the mother to reside either at her parents’ home or her own home. Finally, they ordered that neither parent would provide support to the other.

Texas Appeals Court Upholds Injunction Prohibiting Child Being in Father’s Girlfriend’s Presence

Published on: March 11, 2020 | by Kelly McClure

In some Texas custody cases, the major issue is not the actual custody or visitation. Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person. Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner. A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.

The parents married in 2011 and moved to Austin in 2015. The mother became pregnant in 2017. The father became romantically involved with a co-worker. The father testified he lied to the mother repeatedly to hide the affair. The daughter was born prematurely and stayed in the neonatal intensive care unit for five and a half weeks.

Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship. The mother filed for divorce after she learned of the affair. She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.

Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Published on: March 4, 2020 | by Francesca Blackard

A court generally may not amend or change the property division made in a Texas divorce decree. The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation. If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007. Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets. They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.

In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized. The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.

The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …” The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce. The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts. The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO. It also said it would become an integral part of the divorce decree.

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Published on: February 26, 2020 | by McClure Law Group

Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children. In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent. In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage. The mother moved to another town and filed for divorce. The decree required the father to use a Soberlink alcohol monitoring device before and during visitation. The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits. She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity. She also alleged the father failed one of his alcohol tests.

Texas Appeals Court Upholds Disproportionate Property Distribution

Published on: February 19, 2020 | by Kelly McClure

Property division in a Texas divorce must be just and right. In some cases, courts may determine that a disproportionate division of the community assets is just and right. In dividing the property, courts may consider a number of factors, including the ages of the parties and their relative physical conditions, their abilities, their education and business opportunites, and the size of their separate estates. The court may also consider fault, but may not punish a spouse through the property division. In a recent case, a husband challenged the disproportionate division of property awarded to the wife.

The parties separated after the husband was fired from his nursing job for failing to take a drug test. The wife testified she lived with the husband’s mother during the separation. She testified she withdrew funds from their joint checking accounts because the money was being used for drugs and gambling. According to the appeals court’s opinion, the husband was banned from his mother’s home and ordered to have no contact with the wife or their children by an Arkansas court.

The wife petitioned for divorce and asked to be awarded a disproportionate share of the community assets. The trial court ordered the husband to vacate the home. There was evidence the husband broke into the home and caused damage to the home and personal property.

Texas Court Finds Same-Sex Spouse Is Parent of Child Born to Spouse through Artificial Insemination

Published on: February 5, 2020 | by Francesca Blackard

Texas family law was written before marriage between same-sex partners was recognized. Many of the statutes are written in gendered terms that do not contemplate the possibility of marriage between same-sex partners or parents who are the same sex. A recent case considered whether the female spouse of a child’s biological and birth mother was a parent under Texas law.

The appellant had a child at the time of the marriage and the parties discussed having a child together. A friend of the parties agreed to be their sperm donor. They agreed the appellee would carry the child. According to the appeals court’s opinion, the appellant performed the insemination in the parties’ apartment. The appellant accompanied the appellee to most of her doctor’s appointments. She was at the hospital when the baby was born and took family leave to be with the baby. When the parties divorced, the trial court found the appellant was also a parent to the child and ordered her to pay child support. She appealed.

The appellant argued “parents” are defined as a mother and father in the Texas Family Code. The appellee argued that same-sex marriage and related benefits are recognized in the United States pursuant to U.S. Supreme Court decisions and Texas law must be read in light of those decisions.

Texas Court Can’t Deny Petition for Modification of Conservatorship for No Material Change without Evidentiary Hearing

Published on: January 29, 2020 | by McClure Law Group

A court may modify a Texas custody order only in certain circumstances. One of the most common reasons to modify an order is that there has been a material and substantial change in circumstances since the previous order and a modification is in the child’s best interest. Whether a material and substantial change has occurred is a question of fact. The party seeking modification has the burden of proving a material and substantial change has occurred.

In a recent case, a father challenged denial of his petition for modification because he had not been allowed to present evidence to support it. A 2010 order named the parents joint managing conservators, with the mother having the exclusive right to designate the child’s primary residence.

The child moved in with his father, his paternal grandmother and his step-grandfather following his mother’s death in 2015. The grandparents filed a petition to modify the 2010 custody order based on the mother’s death, as well as the father’s behaviors they claimed significantly impaired the child’s safety and well-being. The grandparents asked to be named temporary joint managing conservators with the right to designate the child’s primary residence. They also asked the father be denied access to the child, or alternatively, that his access to the child be supervised.

Texas Possession Order Can’t Contravene Jury Verdict on Primary Residence

Published on: January 15, 2020 | by Kelly McClure

A parent may demand a jury trial in a Texas custody case. After the jury decides certain foundational issues, the trial court then determines the specific terms and conditions. The Texas Family Code prohibits the court from contravening the jury’s verdict on certain specified issues, including primary residence. Tex. Fam. Code Ann. § 105.002.

A mother recently challenged a trial court’s possession order on the grounds it contravened the jury’s verdict and was not in the child’s best interest. The father petitioned to be named joint managing conservator with the exclusive right to designate the child’s primary residence when the child was two months old. The jury found the mother should have the exclusive right to designate the child’s primary residence within the state of Texas. Following a bench trial on possession and access, the trial court orally ordered the father would have “week on/week off” possession.

The court issued a final order appointing the parents joint managing conservators with the mother having the exclusive right to designate the primary residence in Texas. The order also granted the father week-on/week-off possession until the child turned five and started kindergarten. In August 2022, the father would be subject to a standard possession order.

Texas Appeals Court Won’t Take Piecemeal Approach to Property Division Appeal

Published on: January 8, 2020 | by Francesca Blackard

In a Texas divorce, the division of community property must be just and right. The goal is an equitable, but not necessarily equal, division. A party may not get the specific items that he or she wants, but that does not necessarily mean that the division of property is not just and right. In a recent case, the wife challenged the specifics of the property division.

According to the court’s opinion, the husband’s retirement annuity was worth $234,000 when he retired from his job. There was evidence that he withdrew funds from the account and hid them from the wife. There was evidence that he used the funds for household expenses and expenses related to the couple’s horses. The retirement account was worth approximately $50,000 at the time of trial.

The husband admitted that he did not report the withdrawals on the joint tax returns for several years, resulting in a $20,000 liability to the IRS. After the separation, the wife hired a CPA to seek innocent spouse status for her. She testified that she wanted the husband to pay the $3,000 for the CPA’s services.

Texas Appeals Court Upholds Custody Modification Based on Family Violence

Published on: January 1, 2020 | by McClure Law Group

Generally, a Texas child custody order can be modified only if the modification is in the child’s best interest, and there has been a material and substantial change in circumstances. Family violence may constitute a change in circumstances warranting a modification.

In a recent case, a mother challenged a modification, alleging that there was insufficient evidence of family violence to support a finding of a change in circumstances. When the child was an infant, the parents entered into an agreed order, appointing both of them as joint managing conservators, with the mother having the exclusive right to designate the primary residence.

The mother was subsequently charged with assaulting the father’s girlfriend. In December 2016, the mother took the child to California to live with her mother and other children.