Articles Tagged with mother

iStock-483611874Sometimes Texas child-support disputes can continue well past the child’s eighteenth birthday.  A Texas appeals court recently decided a case regarding back child support for children who were in their 50s.

This case dealt with a writ of income withholding and child-support liens.  Pursuant to Tex. Fam. Code § § 158.301, a parent may file a notice of application of judicial writ of withholding if there is a delinquency in child support that is at least the total due for a month. The notice must include the amount of the arrearages and the amount to be withheld. Tex. Fam. Code § 158.302(1).  The obligor may file a motion to stay the writ within 10 days of receiving the notice.  Tex. Fam. Code § 158.307(a).  The clerk of court may not deliver the judicial writ of withholding until a hearing has occurred. Tex. Fam. Code § 158.308.

According to the appeals court’s opinion, the trial court ordered the father to pay child support when the parents divorced in 1970.

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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-1033856542Texas family law presumes a man is the father of a child in certain circumstances, including when he is married to the child’s mother at the time of the birth or when he continuously resides with the child for the first two years of the child’s life and holds himself out to others as the child’s father. Tex. Fam. Code § 160.204.  A Texas trial court must generally order genetic testing to determine parentage if one of the parties requests it, but that is not the case if there is a presumed father. Tex. Fam. Code § 160.502. When there is a presumed father, the court may deny the request for genetic testing if the conduct of the requesting party estops them from denying parentage and it would be inequitable to disprove the presumed father’s parentage.  In deciding whether to deny a request for genetic testing, the court must consider the child’s best interests, including certain enumerated factors. Tex. Fam. Code § 160.608

A man recently challenged a court’s order for genetic testing and subsequent adjudication that he was not the child’s father. The child was born while the appellant was in a relationship with the child’s mother.  According to the appeals court’s opinion, the appellant was aware he was not the child’s biological father but agreed to be listed as the father on the birth certificate.  The appellant and the mother broke up, but the appellant continued to see the child nearly every day.  The mother subsequently denied him access to the child after they were unable to reach a child-support agreement.

Man Petitions to Adjudicate Paternity

The appellant petitioned to be named a joint managing conservator of the child in 2016.  The trial court ordered genetic testing. When the results showed the appellant was not the child’s biological father, the trial court adjudicated him not to be the child’s father.  The appellant then appealed and asked the appeals court to name him joint managing conservator.

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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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iStock-483611874If a parent in a Texas child-support case is intentionally unemployed or underemployed resulting in an income significantly less than what they could earn, the court may calculate child support based on their earning potential. Tex. Fam. Code § 154.066(a).  The other parent has the burden of showing that the parent is intentionally unemployed or underemployed.

A father recently challenged a trial court’s finding that he was intentionally unemployed or underemployed and the child-support obligation based upon that finding.

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