Texas Appeals Court Affirms Modification Naming Father Sole Managing Conservator

To modify a Texas custody order, the court must find that there has been a material and substantial change in circumstances and that the modification would be in the children’s best interest.  In a recent case, a mother challenged the court’s finding that it was in the children’s best interest for the father to be the sole managing conservator following involvement by the Department of Family and Protective Services.


When the parents divorced, they were named joint managing conservators and the mother was awarded the right to designate the children’s primary residence.

The mother testified that the father did not regularly visit the children or telephone them.  She said she “moved a lot” with the children and did not communicate with them.  She was homeless for a week or two. The children stayed in with their father’s mother while the mother stayed in her car.

The mother was stalked and harassed by someone she worked with starting in 2020.  She quit her job in 2022 and moved with the children to Alabama for a brief time.  She subsequently moved in with her mother in Lubbock.  She did not inform the father about either of these relocations.

The Department of Family and Protective Services opened an investigation after someone reported the mother was neglectful in supervising the children and had paranoid delusions and serious mental health issues.  She took the children out of school, but did not homeschool them. The grandmother said she tried to “cast a demon” from one of the children and agreed that she should not have unsupervised contact with them.

The Department sought termination of the parental rights of both parents.  The Department was named temporary managing conservator and the children were placed with their father.

Modification Proceedings

Both parents petitioned to modify the parent-child relationship.

The mother obtained treatment and was diagnosed with bipolar disorder with psychosis.  She was prescribed multiple medications, but had not been taking them for several months at the time of trial. She said she experienced severe side effects.  She disagreed with the bipolar diagnosis and said her doctor in Lubbock diagnosed her instead with anxiety with panic attacks, depression, and insomnia.  That doctor retired and the mother was seeking an evaluation by another doctor in Dallas.  According to the court’s opinion, none of her medical providers told her not to take the medication.

A permanency specialist testified that the parents completed the family service plans implement by the Department.  The children had been living with their father and stepmother.  They went to school and had good grades.  According to the appeals court, they thrived while living with the father and had a “safe, stable, and loving” home.  The mother worked with the stepmother to schedule visitation.

The associate judge appointed the father as the children’s sole managing conservator and the mother possessory conservator with supervised visitation.

The Mother’s Appeal

The mother appealed, arguing the trial court abused its discretion by naming the father sole managing conservator.  She did not argue that the court erred in finding there had been a material and substantial change, but argued that the modification was not in the children’s best interest.

The appeals court noted that previous case law has recognized the need for permanence in a stable and permanent home as the “paramount consideration” with regard to the child’s best interest.  According to the record, the children were placed in the father’s care soon after they were removed from the mother.  They had been living with him for more than a year when the trial occurred.  The appeals court noted the children had perfect attendance at school and had made friends.  The father had been working at his full-time job for four years and owned the home.  The appeals court stated the children were thriving with him. The father and stepmother encouraged the children’s relationship with the mother.

There was also evidence the mother had difficulty maintaining a stable environment for the children and moved frequently when they were with her.  They were homeless twice. She moved them to Alabama because she was afraid for their safety while she was being stalked and harassed.  There was testimony about her erratic behavior before the Department intervened and she sought psychiatric treatment.  While the case was pending, she refused to take her prescribed medication, had trouble keeping a job, and slept in her car at times.

The appeals court pointed out the trial court was best positioned to evaluate the credibility of the parties and could have reasonably concluded it was in the children’s best interest for the father to be their sole managing conservator.  There was substantive and probative evidence supporting the trial court’s decision, so the appeals court found no error in the finding it was in the children’s best interest for the father to be sole managing conservator with the right to designate their residence.

The appeals court affirmed the judgment.

Call a Skilled Custody Attorney

In this case, the court concluded it was in the children’s best interest for their father to be sole managing conservator. If you believe your child’s other parent is no longer able to provide a safe and stable home, an experienced Texas custody lawyer can review your case and advise you on whether modification may be an option.  Call McClure Law Group at 214.692.8200 for a consultation.

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