Articles Tagged with conservatorship

iStock-1175949984A trial court generally has broad discretion in deciding whether to impose a geographic restriction on the child’s primary residence in a Texas custody case.  A geographic restriction limits where the children’s primary residence may be.  As with other aspects of a custody case, the primary consideration is whether the restriction is in the best interest of the child. A geographic restriction can help ensure the child maintains relationships with the non-custodial parent, extended family, and the community.  In some cases, however, a parent may have good reasons to want to move with the child. The Texas Supreme Court has identified a number of factors in determining whether a move is in a child’s best interest: how it would affect relationships with extended family, how it would affect the non-custodial parent’s visitation and communication with the child, whether a meaningful relationship between the child and non-custodial parent could be maintained with a visitation schedule, the child’s current contact with both parents, the reasons for and against the move, the child’s age, the child’s ties to the community, and the child’s health and educational needs. Lenz v. Lenz.

A father recently appealed an order granting the mother the exclusive right to designate the primary residence without a geographic restriction when the mother intended to move out-of-state with the children.

Mother Offered Opportunity in Arizona

The trial court made several findings of fact. The trial court found the parents moved to Austin so the mother could attend graduate school and intended to stay there until she received her PhD. They had agreed to live there temporarily until the mother got a faculty position at a university.  She earned her PhD in 2012.  The parties’ twin children were born prematurely in 2013, and the mother took time to care for them instead of advancing her career.  During the marriage, she only applied for positions in cities where the father would also have potential job opportunities.  They agreed she should apply for a position in Arizona in 2018, but the job was not filled at that time. The parties separated in February 2019 and the mother continued to be primary caregiver.

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iStock-1147846829Grandparents sometime take on a parental role in the lives of their grandchildren.  In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the  grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children.  The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.

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5thingsdivorcecourt_headerA court should consider a number of factors in deciding a Texas custody case.  Even when the court determines the parents should be joint managing conservators, the court does not have to award equal periods of possession and access to the child to each parent. Tex. Fam. Code § 153.135.  Under Texas law, there is a rebuttable presumption that the standard possession order serves the child’s best interests.  Tex. Fam. Code § 153.252.  A father recently challenged the divorce decree giving the mother the right to designate the child’s primary residence and awarding him the standard possession order.

Trial Court Initially Awards Father Primary Custody

According to the appeals court’s opinion, the parties’ child was born about three months after they married in 2014.  The parties separated in 2016 and the mother petitioned for divorce in March 2017. The court signed temporary order giving the father the exclusive right to designate the child’s primary residence in Travis County.

At the custody hearing, there was evidence the mother had sustained a serious brain injury the previous year.  There was significant testimony about her mental health before and after the separation and about how her injury affected her ability to take care of the child.

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Evidence is important in any case, including a Texas child-custody dispute.  In a recent case, a father challenged a trial court’s divorce decree based on the exclusion of certain evidence at trial.iStock-818445486

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A court may order one joint managing conservator to pay Texas child support to another joint managing conservator.  Tex. Fam. Code Ann. § 153.138.  The child’s best interest is the primary consideration in determining child support.  There may, therefore, be occasions where a court orders the parent with primary physical custody to nonetheless pay child support to the other parent, when they are both joint managing conservators.  A mother recently challenged an order to pay child support when she had been awarded the exclusive right to determine the child’s primary residence.

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The right to establish primary residence of a child has generally been perceived to have an inherent control over certain aspects of the right to make educational decisions. The Texas Court of Appeals out of Austin, however, recently handed down an interesting ruling regarding the connection between these two rights, thereby changing how many will interpret the meaning behind the right to designate primary residence. Continue Reading ›

For any of you Gossip Girl fans or parents of Gossip Girl fans, you probably remember Serena van der Woodsen’s mother, Lily van der Woodsen. Her real name is Kelly Rutherford, and her life is just as dramatic as the scenes of the popular TV show.

Rutherford’s marriage to Daniel Giersch in August 2006 has led to all sorts of personal trouble for her. They had their first son Hermes in October 2006. In 2008, she was pregnant again with their second child, but ended up filing for divorce from Daniel  in December of the following year. Their child, Helena, was born a few months after the date of filing. Since then, Kelly and Daniel have been in a seriously heated custody battle. Things took a major change in the divorce suit when in April 2012, Kelly’s attorney allegedly leaked information concerning Daniel’s improper business activity in the United States…which got him deported. Custody win for Kelly? Think again.

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