Standard Possession Presumption Does Not Apply to Child Under Three in Texas Custody Case

iStock-839381426Texas family law includes a presumption that parents should be appointed joint managing conservators.  The law does not require, however, that the parents be given equal possession just because they are joint managing conservators.  Tex. Fam. Code § 153.135.  There is a rebuttable presumption that the standard possession order is in the child’s best interest, but that presumption only applies to children who are at least three years old.  For younger children, the court must consider “all relevant factors.”  The statute specifically requires the court consider who provided care before and during the proceedings, how separation from either party may affect the child, the availability and willingness of the parties to care for the child, and the child’s needs, along with other specified factors. Tex. Fam. Code § 153.254.

A father recently challenged the possession schedule and decision-making authority granted to the mother, arguing in part that the court should have awarded equal time or the standard possession schedule.

Mother Files for Divorce

The mother filed for divorce after the couple had been married for about a year and a half.  They were unable to reach an agreement on conservatorship and access of their child.  The father owned his own dental practice and the wife worked in supply chain planning.  Each party lived near their workplaces prior to the marriage, and continued to live separately even after the marriage, with the father staying with the mother two nights a week.  After the child was born, they purchased and moved into a house in Westlake in November 2018. The wife and child moved into an apartment in May 2018.

Temporary orders, to which both parties agreed, gave the husband possession of the child from 7 p.m. Monday to 7 p.m. Tuesday, 3 p.m. Thursday to 9 a.m. Friday, and 7 p.m. Saturday to 7 p.m. Sunday each week.

The trial court named the parties joint managing conservators and gave the mother the exclusive rights to designate the child’s primary residence and to make educational decisions “after meaningful consultation” with the father.  The possession schedule in the temporary order would continue until January 1, 2021, when the standard possession order would take effect.  The father was also ordered to pay monthly child support of $1,710.

Father Argues Trial Court Abused Its Discretion

The father appealed, arguing the trial court abused its discretion. He argued the court did not have sufficient evidence to grant the mother the exclusive rights to designate the child’s primary residence or make educational decisions because the testimony showed she had caused problems with co-parenting and communication. The court noted, however, that the mother’s testimony showed the father had also contributed to these issues.  There was also testimony about ongoing disagreements about where the parties should live.

The father testified he wanted to stay in the house. The mother planned to move back to her house so the child could go to school there.  She testified she wanted the child to attend Montessori school and had placed him on a waiting list without telling the father.  The father testified they looked for a Montessori school together before they were separated and that he had placed the child on a waiting list, but the mother denied knowing about it.

The appeals court found the trial court had heard testimony from both parties regarding communication and decision-making issues and it would not second-guess the trial court’s credibility determinations.  The appeals court found the evidence legally and factually sufficient to support a finding it was in the child’s best interest to give the mother the decision-making authority it did.

Presumption in Favor of Standard Possession Order Did Not Apply to 18-Month-Old

The father also argued there was insufficient evidence to support the modified possession schedule.  The appeals court pointed out the child was only 18 months old and therefore the standard possession order presumption did not apply.  The trial court had ordered the standard possession order to take effect two months after the child turned three.  The appeals court found the father had not shown an abuse of discretion in the trial court’s decision to maintain the schedule from the temporary orders, particularly when the father had requested it in his brief.

The appeals court also rejected the father’s argument there was insufficient evidence of his net monthly resources to support the trial court’s child support calculation. He argued the only evidence of his income was his tax returns, which showed a loss.  The appeals court noted, however, that he refused to testify the tax returns were an accurate reflection of his income.  Additionally, he acknowledged at trial that he had provided the amount of his yearly income at the hearing for the temporary orders.  His net monthly income could be calculated from his annual income, so there was sufficient evidence to support the child support award.

Hire Experienced Attorneys Who Know the Law

As this case shows, a child under three is not subject to the standard possession order presumption.  It is therefore important for a parent to present supporting evidence of the statutory factors.  The experienced Texas custody attorneys at McClure Law Group have the thorough understanding of Texas custody law to help you fight for your rights to your children.  Call us at 214.692.8200 to schedule time to talk about your case.

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