Texas Divorce Attorney Blog

Best-Interest Factors May Not Be Relevant in Texas Custody Case Where Both Parents Are Fit

Published on: June 4, 2020 | by McClure Law Group

In a Texas custody case, the court is not required to give parents equal periods of possession or visitation just because it appoints the parents as joint managing conservators. Tex. Fam. Code § 153.135. The court is also not required to award rights and duties of conservatorship to each parent equally or both jointly. The court’s primary consideration should be the child’s best interest. Tex. Fam. Code § 153.002. Case law has established a non-exhaustive list of factors to be considered in determining the child’s best interest.

A mother recently challenged a court order naming both parents joint managing conservators, but granting the father the exclusive right to determine the child’s primary residence. The mother petitioned for divorce and moved from Missouri City to Dallas. The child primarily lived with the mother for the next six years, but the parents sharing custody under temporary orders.

According to the appeals court’s opinion, both parents “contributed to the ongoing discord . . .” The mother failed to tell the father about some appointments or events before they occurred. She sometimes kept the child from taking calls or made him stop conversations. She would not allow the father to have makeup time, but sought makeup time for herself when her time was disrupted by bad weather. The father “berated” the mother when she was late for the exchange, recorded their conversations, and tracked the child through an iPad. He sometimes ignored the mother, but criticized her frequently for not communicating with him. The mother testified the father was controlling and manipulative.

Texas Court Did Not Acknowledge Mexican Divorce Due to Procedural Issues

Published on: May 28, 2020 | by McClure Law Group

Divorce can be complicated when the parties are citizens of different countries. Each party may feel a divorce in the other’s country may be unfair to them. There may be issues regarding jurisdiction. Furthermore, even after one country issues a divorce, the other country may not recognize it. A husband recently challenged a Texas divorce after a Mexican court had already granted a divorce.

The parties married in 1986 in Texas. The husband is a Mexican citizen and the wife is a U.S. Citizen. They had residences in both countries during their marriage. Their business was in Mexico, but the wife and daughter lived in Texas at the time of the Texas divorce proceedings.

The husband filed for divorce in Mexico in 2015. The wife challenged jurisdiction, arguing jurisdiction was in Texas because that is where the parties lived. The Mexican court granted the divorce in April 2016.

Texas Joint Managing Conservators Presumption May Be Rebutted with Credible Evidence of Abuse

Published on: May 21, 2020 | by McClure Law Group

Texas family law contains a presumption that it is in children’s best interest for the parents to be appointed joint managing conservators. If there is credible evidence of a history of child neglect or physical or sexual abuse by one parent against the child the court may not appoint both parents joint managing conservators. Tex. Fam. Code § 153.004. In a recent case, a mother challenged the appointment of both parents as joint managing conservators when there were allegations of abuse against the father.

The parents had five children together. The mother filed for divorce in 2016. The trial court appointed the parents joint managing conservators of the four minor children and granted the father the right to designate their primary residence. The mother appealed, arguing the court erred in naming them managing conservators when there was credible evidence of a history or pattern of abuse. She also challenged the admission of certain evidence and testimony.

The mother argued that testimony from pre-trial hearings, the father’s trial testimony, and his invocation of the Fifth Amendment during discovery constituted credible evidence. The appeals court found, however, that the trial court had never actually admitted the pre-trial hearing transcripts into evidence and the testimony could therefore not be used to challenge the trial court’s order.

Collaborative Law: Creative Solutions for an Unprecedented Time

Published on: May 18, 2020 | by Francesca Blackard

Although courts are still open and conducting Zoom hearings, there is no doubt that many court cases are moving along more slowly than otherwise desired as a result of the COVID-19 pandemic. A potentially more practical and expedient method of divorce is collaborative law. Continue Reading ›

Texas Appeals Court Reverses Order Changing Child’s Name

Published on: May 14, 2020 | by McClure Law Group

When there is a finding of paternity, a child’s father may move to change the child’s name. Under Texas family law and the state constitution, both parents are treated equally, however, so a child’s surname will not be changed to that of the father based solely on tradition. The court may only change the child’s name based on “good cause shown” and the best interest of the child. Some courts consider a showing of the child’s best interest to be sufficient to establish good cause, but other courts require the requesting party to establish both.

In a recent case, the parents agreed on all issues except the child’s name. According to the court’s opinion, the mother told the father she was pregnant while they were dating. She broke up with him after he asked her to consider an abortion. She then got back together with an ex-boyfriend. She gave the child the boyfriend’s first and last names, but called him by his middle name. The mother told the father he was actually the child’s father after she broke up with the boyfriend.

The father filed a petition to establish paternity, appoint him managing conservator, and change the child’s name. The mother asked to be the sole managing conservator and receive child support.

Texas Appeals Court Upholds Court Order Granting Grandparents Custody

Published on: May 7, 2020 | by McClure Law Group

Under Texas family law, there is a presumption that one or both parents should be named managing conservator of a child in an original suit for custody. If, however, the child’s health or emotional well-being would be significantly impaired, the court may appoint a non-parent if doing so is in the child’s best interest. This presumption can make it difficult for non-parents to gain custody. A mother recently challenged an order giving her child’s paternal grandparents custody.

She appealed the order that appointed her and the child’s paternal grandparents as joint managing conservators, with the grandparents having the exclusive right to designate the child’s primary residence. The trial court had issued that order following a petition to modify a 2013 order that granted the grandparents possession and access to the child.

The trial court titled its order “Order in Suit to Modify Parent-Child relationship.” The court found the child had primarily lived with the grandparents, and they had “had actual care, control, and possession of the child with the voluntary consent of [the mother].” The court also found the mother had been arrested for Battery and Cruelty to a Child in an incident involving her teenage daughter. The court found the mother had a history of drug use and instability. The trial court concluded the mother had relinquished care, control and possession of the child to the grandparents, that appointing her as sole managing conservator or giving her the right to determine the child’s primary residence would significantly impair the child’s physical health or emotional development, and that the modification was in the child’s best interest.

Possession Schedules While on the Front Line of COVID-19

Published on: May 5, 2020 | by Kelly McClure

As COVID-19 began to take hold in the United States, Texas and other states took action to ensure that child possession schedules remained in effect and were followed according to court orders. These actions were effective, and as COVID-19 continues to persist in society, parents have adapted to working within court-ordered possession schedules. Now, however, new issues have surfaced regarding the safety and protection of children who are subject to the court-ordered possession schedules. Continue Reading ›

Texas Court Has Discretion in Determining Duration of Spousal Maintenance

Published on: April 27, 2020 | by McClure Law Group

In a Texas divorce, if one spouse does not have sufficient property to provide for his or her minimum reasonable needs and is not able to earn enough income to provide for those needs and certain other circumstances are met, the court may order spousal maintenance. Tex. Fam. Code § 8.051. The duration of spousal maintenance is generally based on the length of the marriage, with 10 years being the greatest duration, for marriages longer than 30 years. However, in some circumstances, the court may order maintenance for a longer duration. When the spouse is unable to provide for their needs due to disability, the court may order maintenance for as long as they meet the eligibility criteria. Tex. Fam. Code § 8.051.

A wife recently challenged her divorce decree, in part because of the duration of the maintenance award. After the husband filed for divorce, the wife requested temporary spousal support and spousal maintenance after the divorce. The husband was ultimately ordered to pay $400 per month temporary support, starting November 15, 2015. The wife moved to enforce the order after the husband failed to start paying on time, and he began paying the following April.

At a hearing in October 2018, the wife testified she was disabled and it affected her ability to get employment. She testified regarding her retirement, her disability benefits, and her monthly expenses. She said she would not be able to pay for her expenses without spousal support.

Securing Justice for Clients in the Virtual World

Published on: April 21, 2020 | by McClure Law Group

Even when society seems like it has come to a halt, life does not and neither does the legal system. In this age of social distancing, self-quarantining, and virtual hangouts, Texas courts have been on the forefront of keeping the legal system accessible to everyone. This is especially true in the realm of family law where courts have employed virtual hearings and trials Continue Reading ›

Biological Father Ordered to Pay Child Support to Mother’s Ex-Husband in Texas Custody Case

Published on: April 20, 2020 | by McClure Law Group

A Texas custody case can become complicated when a person learns he is the biological father of a child years after the child’s birth. Although a potential father of a child with a presumed father generally must file for adjudication of paternity prior to the child’s fourth birthday, in some cases, a delay may be excused. TEX. FAM. CODE ANN. § 160.607. In a suit adjudicating parentage, the court may order retroactive child support based on the child support guidelines if the parent has not been previously ordered to pay child support and was not party to a suit where support was ordered. TEX. FAM. CODE ANN. § 154.009.

In a recent case, a biological father challenged an order requiring him to pay retroactive child support and granting custody to the mother’s ex-husband. The mother was not sure who the father was, but married during her pregnancy. The mother and her husband also had a child together. The husband was the presumptive father and was adjudicated the father of both children when he and the mother divorced. The husband was named managing conservator with the right to establish the primary residence for both children.

The mother had told the biological father about the pregnancy when she realized she may be pregnant, and he acknowledged he was aware he could be the father from that time. He went to the hospital the day the child was born. He said the mother told him he was not the father and he did not pursue paternity at that time. The mother told him he may be the father when the child was four years old and a paternity test confirmed that he was the probable father.