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Texas Modification of Person With the Exclusive Right to Designate Child’s Primary Residence

Published on: July 11, 2022 | by Kelly McClure

iStock-839381426-300x200 When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children. A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations. The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development. If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest. Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification. The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence. In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children. He also alleged the mother neglected the children.

Texas Appeals Court Holds Paternity Cannot Be Adjudicated After Putative Father’s Death

Published on: July 8, 2022 | by Francesca Blackard

While ideally a child’s parentage is determined when they are young, that does not always occur. A Texas appeals court recently considered whether the trial court could adjudicate the parentage of an adult petitioner after the death of the putative father.

Adult Child Files Paternity Suit Against Father’s Estate

An adult petitioner filed suit against his mother, his alleged father, and the independent executor of his alleged father’s estate, seeking adjudication of his parentage and a declaration that he was the alleged father’s biological son and had the rights and privileges of a surviving child. The executor filed a motion to dismiss, arguing a suit to adjudicate parentage cannot be brought after the putative father’s death. The trial court denied both the executor’s and the petitioner’s respective motions for summary judgment.

Trial Court Adjudicates Parentage

At trial, the executor moved for judgment, arguing that suits to adjudicate parentage do not survive the putative father’s death pursuant to the Texas Family Code. The trial court denied the motion and adjudicated the putative father as the petitioner’s father.

Challenging a Texas Acknowledgment of Paternity

Published on: June 20, 2022 | by Kelly McClure

iStock-1033856542-300x200 A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated. Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however. Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.” He did not, however, make specific allegations. The mother argued the petition was time-barred.

Only William testified at the trial. The mother did not appear or participate. The trial court found the petition was untimely and denied it.

Decision-Making Rights in Texas Joint Managing Conservatorship

Published on: June 10, 2022 | by Kelly McClure

iStock-1163040189-300x200 When parents cannot cooperate to make decisions regarding the children in a Texas custody case, the court may give one parent certain decision-making rights, even if the parents are joint managing conservators. In a recent case, a father challenged a court order requiring him to cooperate in the children’s activities and to pay for half of the children’s tutoring expenses.

The parents were named joint managing conservators of the children in the divorce decree with a modified standard possession order. The mother was granted the exclusive right to designate their primary residence and the father ordered to pay child support. Each parent was responsible for half of any extracurricular activity the parents agreed upon.

Mother Files Modification Suit

The mother petitioned for modification in 2018, seeking the right to make certain decisions after consulting with the father, continuation of certain extracurricular activities, and therapy for the children. In a counterpetition, the father asked the court to give him the right to designate the primary residence and receive child support. He also asked that the mother be required to schedule extracurricular activities only while she had the children.

Texas Court Allows Mother to Travel Internationally with the Child

Published on: June 8, 2022 | by Francesca Blackard

iStock-1183307633-300x169 Generally, when a parent wants to modify the parent-child relationship over the objection of the other parent, they must show the court that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. Often, modifications address major issues, such as where the child lives or the amount of child support. Modifications can address a variety of issues, however, including things like which parent makes medical or education decisions or whether a parent can travel with the child.

A father recently challenged a court order allowing a mother to travel internationally with the child. According to the appeals court’s opinion, the parents were named joint managing conservators of the child when they divorced in 2017. The mother was granted primary custody. The following year, the mother petitioned for a modification, requesting the right to get a passport for the child and take her to visit her maternal grandfather in The Gambia. The father objected and the trial court denied the request.

Mother Leaves Child with Relative During International Trip

The mother went to see her parents in The Gambia in July 2019. She testified the father did not respond when she notified him she planned to travel, so she left the child with an aunt in Chicago.

Texas Court Finds Alleged Father Time-Barred From Adjudicating Paternity

Published on: May 3, 2022 | by Francesca Blackard

iStock-1033856542-300x200 Under Texas family law, a mother’s husband is presumed to be the father of a child born during the marriage. This presumption can be rebutted by an adjudication of parentage or by a valid denial of paternity filed by the presumed father along with a valid acknowledgement of paternity filed by another person. Tex. Fam. Code § 160.204. If a child has a presumed father, a suit to adjudicate the child’s parentage may not be brought after the child’s fourth birthday unless an exception applies. Tex. Fam. Code § 160.607.

Presumed Father Challenges Paternity Adjudication

A presumed father recently challenged a court’s adjudication that another man was the child’s father, arguing the suit was time-barred. The child was born in May 2014. The mother and her husband separated that October. The mother began cohabiting with the alleged father the following October. The mother and her husband divorced in August 2016. The divorce order provided for visitation by the husband of all four children born during the marriage.

The mother and alleged father got married. The alleged father petitioned for adjudication of parentage after a DNA test showed a 99.96% probability he was Lucy’s biological father. The mother’s ex-husband conceded that the alleged father was likely the child’s biological father based on the DNA test. He argued, however, that the alleged father was time-barred from seeking adjudication of parentage.

Adult Daughter Entitled to Child-Support Arrearages from Father after Mother’s Death

Published on: April 28, 2022 | by Kelly McClure

iStock-952098878-300x200 When child support goes unpaid, Texas child-support cases can sometimes go on for years after the obligation would otherwise have terminated. A Texas appeals court recently considered what happens when one parent dies before the past-due child support has been paid.

The parents had a daughter together during their marriage and divorced in 1976. The father failed to pay child support as ordered at times. The trial court found him in contempt in 1987 and ordered him to pay $200 per month in support with additional amounts for a specified time going toward the arrearages.

Adult Daughter Files Child-Support Suit After Mother’s Death

In 2010, the adult daughter filed a petition regarding the unpaid support after her mother’s death. She asked the court to render judgment for the past due child support and to make her the obligee for the arrearages.

Condition Precedent to Receiving Contractual Support Payments in Texas Divorce Agreement

Published on: April 24, 2022 | by Kelly McClure

iStock-1125625723-300x200 When parties to a Texas divorce reach an agreement, the agreement may place conditions on certain obligations. A “condition precedent” is something that must occur before a party has a right to performance of an obligation by the other party. In a recent case, a mother challenged a trial court’s finding she had not met the condition precedent to receive certain payments from the father.

In the final divorce decree, the trial court approved and incorporated the parties’ Agreement Incident to Divorce (“AID”). The parties agreed the father would pay $11,500 in monthly Contract Support Payments to the mother to provide her and the two children an “alternative lifestyle.” They would travel and live abroad so the children could learn other languages and cultures. The mother agreed to maintain this lifestyle and spend the Contract Support Payments to support it as a condition precedent to receiving the payments. The AID also included a provision that the father could send a notice if the mother failed to comply with a material term or condition. If she failed to cure the breach within 30 days, the Contract Support Payments would be abated until she complied.

Father Grows Concerned About Children’s Upbringing

The mother and children traveled within the U.S. and several countries abroad until July 2018. The father grew concerned about the children’s lack of structured education and their health and hygiene by the summer of 2018.

Credibility and Evidence in Texas Child-Support Modification Proceeding

Published on: February 27, 2022 | by Kelly McClure

iStock-483611874-300x200 A modification of Texas child support requires the parent seeking the modification to show there has been a material and substantial change in circumstances since the current order was rendered. Tex. Fam. Code § 156.401. A change in income may be a material and substantial change. A court’s primary consideration should be the child’s best interest.

A father recently appealed the denial of his petition for modification of child support.

The parties divorced in 2018. The father agreed to pay $2,000 in monthly child support, to provide health insurance, to make monthly payments for a credit card balance that had been used for his business, and to pay the mother $50,000 in $1,500 monthly payments for her community interest in the business.

Texas Court Limits Visitation Due to History of Family Violence

Published on: February 23, 2022 | by Francesca Blackard

iStock-839381426-300x200 Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence. A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child. The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order. The mother was given a standard possession order and required to pay child support.