Texas Appeals Court Upholds Custody Modification Following Alleged Domestic Violence Incident

Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order.  The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing.  Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence.  The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence.  The mother petitioned to modify the order, alleging a material and substantial change in circumstances.  She alleged there had been a recent family violence incident involving the father and his fiancée.  She also alleged he had a history or pattern of family violence.  She asked that he be excluded from possession of their daughter.  Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule.  The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am.  They required the mother to reside either at her parents’ home or her own home.  Finally, they ordered that neither parent would provide support to the other.

The mother moved to compel the father to comply with the order to contact the custody evaluator.  The court issued more temporary orders giving the mother the exclusive right to designate the child’s residence and changing possession back to the standard possession schedule.  They also required the father to schedule an appointment with the custody evaluator by a specified date.

The mother subsequently moved to enforce possession or access after the father allegedly refused to give the daughter back to her.  The court ordered the father to complete testing and evaluation with the custody evaluator and indicated it may ask the evaluator to complete the report anyway if he failed to complete the evaluation by the date set.  The court found the father was in violation of the prior possession order but did not find him in contempt.  The court ordered him to pay $500 a month in child support.

Following a bench trial, the court found substantial changes had occurred since the divorce.  The court granted the petition to modify and granted the mother the exclusive right to determine the primary residence.

The father appealed, arguing the court abused its discretion in finding there was a material and substantial change in circumstances.  He argued there was not evidence of the parties’ current and historical circumstances in the record.  The appeals court considered the evidence that had been before the trial court.

The mother testified regarding the alleged domestic violence incident.  She said she had learned the details of the incident when she heard the father testify about it. She said they had reached an agreement that the father would not be the primary custodian and that they would share the daughter during the summer until the mother got primary custody in August.

The mother testified the father missed some of his summer visits with the daughter.  She testified she had lived in an apartment above her parents’ home at the time of the divorce, but now lived in her own apartment.  She had also obtained employment.

The mother acknowledged on cross-examination that some of the circumstances involving the party of which she complained, including his alleged mental health issues and financial instability, had existed at the time of the decree.

The father also testified regarding the alleged domestic violence incident.  He said his ex-fiancée was “freaking out” and said she was going to kill herself.  He said he had the gun to keep her from getting it.  He denied threatening or attempting suicide that day and said he was taken to the hospital because of what his ex-fiancée said.  She sought a protective order against him.  He said he had been investigated for family violence against her, but was cleared.  He also said they signed an agreed injunction to stay away from and not harass each other.  He admitted he had not completed the custody-evaluator requirements.

The appeals court found the trial court had heard evidence of the material and substantial changes in circumstances.  There was evidence of the father’s involvement in a domestic violence incident and admission to a mental health hospital.  His former fiancée sought a protective order against him for that incident.  There were allegations he violated the protective order.  He had failed to comply with the orders regarding the custody-evaluator even after multiple extensions.  Additionally, he was alleged to have failed to make some of his child support payments.

The mother had moved into her own apartment and got a job since the decree was rendered.  Each parent became engaged, with the father’s current fiancée living with him.  Although some of the father’s circumstances had not changed, the court could weigh that evidence against the changes that have occurred.

The appeals court also noted that the trial court had to make implied findings that the temporary orders to change the parent with the right to designate the primary residence were in the child’s best interest and not making the change would significantly impair her health or development.  The appeals court found these implied findings further supported the material and substantial changes in the father’s circumstances.

The appeals court stated it was unable to find the trial court abused its discretion or lacked sufficient evidence to exercise its discretion to determine there had been material and substantial changes.  The appeals court affirmed the trial court’s finding.

If your family has had a change in circumstances that may lead to a custody modification, an experienced Texas custody attorney can advise you on seeking or fighting a modification.  Call McClure Law Group at 214.692.8200 to set up an appointment to talk about your case.


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