A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest. Tex. Fam. Code § 156.101. A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.
The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.
According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation. He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.
Emergency Modification Petition
The mother filed an emergency modification petition and the father filed his own counterpetition, each seeking immediate possession of the daughters through temporary orders and appointment as sole managing conservator for the children. The trial court ordered the father to turn the girls over to the mother and prohibited the son from being around them without supervision by an adult through temporary orders.
Both parties presented evidence of the difficulty they had coparenting and raised questions regarding the fitness of the other parent at trial. The jury found the mother should be the children’s sole managing conservator and the trial court entered a final order accordingly.
Insufficient Evidence Challenge
The father appealed, arguing there was insufficient evidence supporting the jury’s finding that the mother’s appointment as sole managing conservator was in the best interest of the children.
The appeals court point out that the existence of a material and substantial change was not at issue because the father had judicially admitted that element by alleging it in his counterpetition. The appeals court therefore focused on whether there was sufficient evidence that the modification was in the best interest of the children. The court considered the Holley factors, including what the child desired, the child’s current and future physical and emotional needs, the abilities of the parents, the available programs, each parent’s plans for the child, stability of the home, indication through the parent’s acts or omissions that the parent-child relationship is not proper, and any excuses for the parent’s acts or omissions. Because the issue was one of custody modification, the court also considered the need for stability and to prevent constant litigation.
The father argued there was evidence the mother alienated the children from him. He testified he had not seen his son for eight months and his daughters for four months due to the mother’s “vindictiveness.” He also said the mother disparaged him by calling him names in the children’s presence.
The mother denied interfering with the father’s relationship with the children. She said the issues in the father’s relationship with the son occurred because the father had called the police on the son on multiple occasions. She claimed the son considered the relationship with his father as being detrimental to his own mental health. She testified one of the girls did not want to visit her father anymore. She explained how she tried to encourage the children to see their father and that he refused to address his relationships with his children.
The appeals court pointed out that the jury was responsible for evaluating the weight and credibility of the evidence and could have credited the mother’s testimony instead of the father’s.
The appeals court pointed out there was also evidence supporting removing the father as joint managing conservator. There was evidence that he: had outbursts, had fabricated the allegation that the son assaulted one of his daughters to support denying the mother access, kept the girls out of school, and failed to keep up with their appearance. There was also testimony that the children sometimes did not get medical and psychological care due to the parents’ inability to co-parent.
The appeals court found there was legally and factually sufficient evidence to support the jury finding the mother should be sole managing conservator.
The father also argued the trial court abused its discretion when it excluded certain evidence it found was untimely. The trial court had excluded audio recordings of the mother and grandmother acknowledging assaults by the son against the daughters and the father’s testimony, both under Tex. R. Civ. P. 193.6. Pursuant to Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely identified are not admissible. The father argued that the good-cause exception applied to the audio recordings because he was not able to get the recordings from his computer prior to the trial. He further argued that the no-unfair-surprise exception applied because the mother would not be surprised by recordings of conversations in which she participated. He also argued the no-unfair-surprise exception applied to his fiancée’s testimony because she had been friend’s with the mother, the mother knew they were living together, and the fiancée was identified in both the father’s discovery responses and his witness list.
The appeals court noted, however, that the father had to show that the error probably resulted in an improper judgment. He argued the exclusion kept him from challenging the mother’s credibility and other testimony. He had not, however, made an offer of proof or filed a bill of exception to preserve the evidence. The record therefore did not clearly indicate what the evidence would have shown. The appeals court was therefore unable to determine if the excluded evidence was controlling on a material issue.
The appeals court affirmed the order.
Seek Legal Guidance from a Knowledgeable Dallas Custody Lawyer
If you are concerned your child may not be safe in the other parent’s home, a skilled Texas custody attorney can advise you of your options. In some cases, an emergency petition may be appropriate. Call the offices of McClure Law Group at 214.692.8200 to set up a consultation.