Texas Divorce Attorney Blog
When a party in a Texas custody case fails to respond or appear, the court may find they defaulted and enter a judgment in favor of the other party. For a court to enter a post-answer default judgment against a party, however, the pleadings must give the party fair notice of the claim. A mother recently challenged a custody modification, arguing that the father’s pleadings did not specifically request the rights awarded to him by the court.
The trial court originally appointed both parents joint managing conservators with the mother having the right to determine the child’s primary residence without a geographic restriction in 2007. The court also granted the father visitation and ordered him to pay child support.
The Office of the Attorney General (“OAG”) filed a petition in 2020, alleging the father’s financial circumstances had changed and seeking an increase in child support. The father requested a hearing, which was set for March 10.
According to the appeals court’s opinion, the father obtained counsel and petitioned to modify the parent-child relationship in February, alleging his circumstances had materially and substantially changed. His petitioned stated that he believed the parties would enter into an agreed parenting plan and asked the court to find such a plan in the child’s best interest and render an order in accordance with its terms. Alternatively, he asked the court to enter an order with a modified parenting plan in the child’s best interest.
The Hearing
At the hearing in January 2021, the father’s attorney and counsel for the OAG appeared, but the mother did not appear. The father testified the child lived with the mother. He admitted he had not seen the child from 2007 to 2020, but said he had “continuous contact” with him since “February and March” of 2020. The father said the child struggled in sixth grade but had stayed with him for 30 days to finish summer school so he could go into seventh grade. The child had been living with the mother again since August 2020.
The father presented a report card indicating the child was failing several subjects and had only attended 84 of 526 classes in the fall of 2020. The father testified the child would rather stay where he was, but expressed concerns about the child’s grades. He said he was trying to do what was in the of child’s best interest, and acknowledged it would be “an uphill battle” for him to have custody. He asked the court to modify the prior order to name him conservator with the right to determine the child’s residence and make educational decisions
The trial court granted his request.
The mother then obtained her own counsel and filed a motion for the court to sign an order confirming the child support review order and to void the child custody proceeding. She argued the court’s ruling at the hearing had not been supported by the pleadings.
The trial court signed a final order in the modification case, stating the mother had not appeared after receiving notice and had defaulted. The court also found that the modifications the father sought were in the child’s best interest. The court named both parents joint managing conservators and gave the father the exclusive right to designate the child’s primary residence with no geographic restriction and to make educational decisions. The mother was granted standard visitation and ordered to pay $113 in medical support.
The Mother Appeals
The mother appealed, arguing the father’s pleadings had not explicitly requested the rights he was granted.
Texas has a “fair notice standard” for civil pleadings, meaning the court considers whether the pleading informs the other party of the nature and issues of the controversy and allows them to ascertain what testimony would be relevant.
The father argued his petition, which asked the court to confirm a “modified parenting plan . . . in the best interest of the child,” put the mother on notice that “all matters related to rights and duties, possession, and access” were at issue. The mother argued that a “parenting plan” does not address the right to designate the child’s residence or to make decisions regarding education.
The appeals court considered the statutory definition of “parenting plan.” The appeals court also noted that a final order in a suit affecting the parent-child relationship generally must contain a parenting plan. Additionally, when the plan appoints the parents joint managing conservators, it must also designate which has the exclusive right to designate the child’s primary residence and specify each parent’s rights and duties with regard to the child’s care, support, and education.
The appeals court noted the cases cited by the father involved original custody proceedings and not modifications. Pursuant to Tex. Fam. Code 153.134(b)(1)(A), the final order in an original proceeding must designate the conservator with the exclusive right to determine the child’s primary residence. Modification proceedings do not have the same requirement. The pleading requirements are therefore applied more strictly in modification proceedings.
The appeals court also pointed out that the case arose from the OAG petition for child support modification. The father’s petition did not specifically seek the rights the court awarded him or allege facts supporting that award. The appeals court concluded that within the context of the case, the father’s request for a modified parenting plan was not sufficient to enable the mother to ascertain “the nature and basic issues of the controversy and what testimony will be relevant.” In re A.D. The appeals court found the trial court abused its discretion in its award to the father and reversed the trial court’s judgment and remanded the case.
Call McClure Law Group
Although the mother in this case was successful in her appeal, slightly different circumstances could have let to a different result. The fact this was a modification and not an original custody proceeding was a significant factor in the appeals court’s decision. Failing to respond or appear in a court proceeding can have severe consequences that cannot always be reversed. If you receive court papers involving custody of your child, you should contact the skilled Texas custody attorneys at McClure Law Group right away. Call 214.692.8200 for a consultation.