Texas Divorce Attorney Blog
The relief granted by a court generally must conform to the pleadings of the parties, unless the parties consent to try an issue that was not included in the pleadings. In a recent Texas custody case, a father appealed a court order that he argued not only did not conform to the pleadings, but was also contrary to the court’s findings and not supported by evidence.
The parents lived together for the first two years of the child’s life, but did not get married. The child lived with the mother after they separated.
The father petitioned for appointment as joint managing conservator with the exclusive right to designate the child’s primary residence. He also requested a geographic restriction. Pursuant to a mediated settlement agreement (“MSA”), the court issued temporary orders appointing both parents joint managing conservators with the mother having the exclusive right to designate the child’s primary residence in Fannin and contiguous counties. The temporary orders also gave each parent the right to consent to medical treatment and education, subject to the other parent’s consent. The parents shared visitation under the temporary orders, alternating weeks with the child.
The mother moved with the child to Collin County. The father amended his petition and requested the child’s primary residence be limited to Collin and contiguous counties. He also requested the exclusive right to enroll the child in school. The mother also sought the exclusive right to designate the child’s primary residence.
The father testified the mother moved with the child to Houston after they separated. He said he moved in 2018 to be closer to the child. He moved a second time to be closer to the child in Fannin County. He sold his house with the intent of buying one nearer to the child’s school. He claimed they had a “50/50 possession schedule.”
The mother testified an alternating week schedule was not feasible because the father lived 30 minutes from the child’s school. She said she often did the school pick-ups during the father’s weeks so the child would not have to spend so much time traveling back and forth for sports practice. She said she would meet the father at practice and the father would take the child home with him after.
The parents had cooperated in getting the child diagnosed with ADHD. The mother enrolled the child in Medicaid even though the father had offered to enroll the child on his insurance, saying she could not afford the $50 medication co-pay with the father’s insurance. The father had paid all of the child’s uninsured medical expenses, but said he would not be able to do that long term.
The mother asked that the father have an expanded possession schedule. She agreed they could jointly make medical and education decisions, with the doctor and school counselor functioning as tie-breakers.
The trial court appointed both parents joint managing conservators, with the mother having the right to designate the child’s primary residence without a geographic restriction. The mother was also awarded the exclusive right to consent to medical, psychological, and psychiatric treatment, and to make education decisions. The trial court found it was in the child’s best interest for the parents to be named joint managing conservators with the mother having the exclusive right to designate the child’s primary residence. The court also found that a geographic restriction of Collin and contiguous counties was in the child’s best interest. The court further found it was in the child’s best interest for the parents to share the right to consent to medical treatment, subject to the other’s agreement. The court found, however, it was in the child’s best interest for the mother to have the right to consent to psychiatric and psychological treatment, with seven days written notice to the father. The trial court also found the father was entitled to standard possession.
The father moved for reconsideration, specifically asking for a geographic restriction and reconsideration of the mother’s exclusive right to make medical and educational decisions. After his motion was impliedly overruled, he appealed.
Geographic Restriction
On appeal, the father argued the lack of geographic restriction was not supported by evidence or the mother’s pleadings and was contrary to both the findings of fact and to public policy.
The appeals court pointed out the parties had agreed to a geographic restriction in the temporary orders. The father had requested the exclusive right to designate the child’s primary residence with a geographic restriction, but the mother did not specifically request primary custody without a geographic restriction. In fact, the trial court’s findings of fact stated she requested the geographic restriction in the temporary orders continue. The appeals court concluded the trial court’s final order did not conform to the pleadings and the trial court therefore erred unless the issue had been tried by consent. The record did not indicate the issue was tried by consent, so the appeals court concluded the trial court had abused its discretion by omitting a geographic restriction.
The Texas Supreme Court has identified several factors to be considered in determining if a geographic restriction is in a child’s best interest. The court should consider reasons for and against relocation; the opportunities that will be available with the move; emotional, economic, and educational enhancement for both the child and the custodial parent; effect on the child’s relationship with extended family; effect on communication and visitation with the other parent; whether a visitation schedule could allow the continuation of a meaningful relationship with the other parent; and the other parent’s ability to relocation. Lenz v. Lenz.
There was significant evidence about the child living in Wolfe City and the father trying to move closer. There was not any evidence the mother planned to move out of that area. The mother testified about issues with the father living just 30 minutes from the school. The appeals court noted that another move by the mother would affect the father’s ability to continue a meaningful relationship, visit, and communicate with the child. The appeals court concluded the trial court abused its discretion in removing the geographic restriction.
Consent to Medical Treatment
The father also argued the trial court abused its discretion in giving the mother the exclusive rights to consent to medical, psychiatric, and psychological treatment and to make education decisions.
When a court names both parents joint managing conservators, it must specify each parent’s rights and duties and include provisions to minimize disruptions to education, friends, and the child’s daily routines. Tex. Fam. Code § 153.134. The appeals court noted the mother had not requested these exclusive rights, so the final order did not conform to the pleadings. As with the geographic restriction, the record did not show the issues related to these rights were tried by consent. The mother had not requested the exclusive right to make these decisions and instead testified the parents could make medical and education decisions jointly, with “tiebreakers.” The appeals court therefore agreed that the trial court had abused its discretion in awarding the mother these exclusive rights.
The appeals court reversed the final order and remanded with instructions for the trial court to render another order including a geographic restriction and making the decision-making at issue shared between the parents. The order should also provide that the child’s primary physician’s recommendation would be followed with regard to any dispute regarding the child’s medical, surgical, dental, psychological or psychiatric treatment and the school counselor’s recommendations would be followed with regard to any disputes regarding educational decisions.
Seek Help from an Experienced Dallas Custody Lawyer
It is unclear why the trial court’s order did not align with its findings of fact in this case, or why it granted the mother relief she had not sought. If you are in a custody dispute, the skilled Texas family law attorneys at McClure Law Group can help you protect your rights to your children. Set up a consultation at 214.692.8200.