Texas Appeals Court Upholds Child-Custody Modification

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225A Texas conservatorship order may be modified if doing so is in the child’s best interest and there’s been a material and substantial change in circumstances.  When a parent seeks modification, the other parent may file a counter-petition seeking their own modification.  In a recent case, a mother appealed a modification order in favor of the father after she had petitioned for modification.

According to the appeals court’s opinion, when the parties divorced, the trial court approved their agreement to be joint managing conservators with 50/50 custody.  The mother petitioned for modification, seeking primary custody and educational decision-making.   The father also sought appointment as primary conservator. He asked for modification allowing him to impose reasonable discipline and to limit the mother’s phone contact during his possession.

The mother pointed to the father’s allowing the son to stay alone, behavior at sporting events, storage of a gun, and a text message asking her to pick up the children because “he was done” with them.

The father provided evidence the mother alienated the children from him by interfering with his possession, not allowing them to talk to him at their activities, undermining his disciplinary efforts, making disparaging comments, withholding his phone calls, and showing the oldest daughter his text messages.

The mother acknowledged a contentious relationship with the father, but denied undermining his relationship with the children.

Trial Court Modifies Prior Order

The trial court issued a modification order naming the father primary conservator of the son and continuing the 50/50 schedule for the daughters during the school year with a new custom schedule for weekends, summer, and holidays allowing the children to be together.

In its findings of fact and conclusions of law, the trial court found a pattern of parental alienation by the mother and successful alienation of the oldest daughter from the father.  The court also found evidence of a history or pattern of the mother disparaging the father in the children’s presence.  The trial court also found that there had been a material change of circumstances and it was in the children’s best interest for the parties to be joint managing conservators with the father having the right to designate the son’s primary residence and to make educational and medical decisions.  The trial court also found a it was in the children’s best interest for the parents to have a custom possession order.  The mother appealed.

The mother argued there was no evidence that it was in the son’s best interest for the father to be primary conservator, that she tried to alienate the children, or that the standard possession order was not in the children’s best interest during summer and holidays.

There was testimony about the parents’ difficulty communicating and co-parenting.  The mother testified the father had anger issues and could not control his temper. She alleged he engaged in problematic behavior at the children’s sports events and was banned from one venue for a year.  The mother claimed he jeopardized the children’s safety several times.

The father alleged the mother tried to alienate the children from him. He testified she rarely informed him of their activities.  He felt she made it difficult for him to communicate with them when they were with her.  There was also evidence regarding the mother undermining the father’s discipline.

The appeals court noted there was evidence that it was in the son’s best interest to be placed in the most structured and disciplined home.  Based on the evidence, the trial court could conclude that the father was stable, did not try to manipulate the children, and was the best parent to provide the environment the son needed.

Appeals Court Affirms Trial Court’s Ruling

The appeals court found “more than adequate support” for the conclusion the mother had done things designed to alienate the children.  The appeals court also concluded there was sufficient evidence to support the father’s appointment as primary custodian with the exclusive right to make medical and educational decisions.  A trial court may give one parent decision-making authority when the parents have had trouble effectively making joint decisions, co-parenting, or communicating.  There was some evidence supporting the trial court’s decision, so the trial court had not abused its discretion in finding it was in the son’s best interest for the father to determine primary residence and granting the father exclusive educational and medical decision-making.

Texas law presumes a standard possession order is in the children’s best interest.  Tex. Fam. Code § 153.252.  The court may consider certain factors to determining whether to order nonstandard possession.  In this case, the trial court tailored the schedule to accommodate parties’ previous agreement and to coordinate the children’s time with the mother.  The appeals court found there was sufficient evidence to rebut the standard possession order presumption. The appeals court also concluded the trial court’s order allowed both parents to have significant time with the children and avoided difficult transfers.  The appeals court found no abuse of discretion in the non-standard order.

The mother argued there was no testimony at the final hearing about the holiday and summer visitation.  The appeals court noted, however, that the mother’s attorney had argued for changes in the standard holiday and summer schedules at the hearing on the motion to reconsider.  The mother therefore waived her right to argue the trial court had erred in deviating from standard possession when she had asked the trial court to do just that.

The appeals court concluded some evidence supported the trial court’s order and the trial court therefore did not abuse its discretion when it modified the decree.  The appeals court affirmed the trial court’s judgment.

Modification Orders Are Very Fact-Intensive; Call McClure Law Group Today

In this case, the mother originally petitioned for modification, but the modification order was in the father’s favor.  The children’s best interest is always the primary consideration in custody matters.  If you are considering pursuing a modification of custody or visitation, a knowledgeable Dallas custody modification attorney can advise you on your options.  Set up a consultation with McClure Law Group by calling 214.692.8200.




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