Texas Divorce Attorney Blog
International marriages can lead to complex divorces, especially in regards to child custody. In a recent Texas divorce case, a mother appealed a decree that awarded the father the exclusive right to designate the child’s primary residence.
According to the appeals court, the parties married while the father was stationed in Germany with the U.S. Army. The child was born in Germany after the father was sent to San Antonio. A few months later, the mother and baby joined him in Texas.
The mother and child visited Germany. The father told the mother the marriage was over, and she decided to stay there. She did not bring the child back when he asked her to do so. He sued her for child abduction and went to Germany for Hague Convention proceedings. They ultimately reached an agreement and the mother and child returned to Texas.
The mother went back to Germany alone after the father filed for divorce.
Agreed temporary orders appointed both parents temporary joint managing conservators with alternating custody each three months.
The trial focused on who should have the exclusive right to determine the child’s primary residence. The child custody evaluator recommended the mother have that right.
Father’s Testimony
The father testified he bought a home and “built up a life” for the child in Texas. He intended to stay in the Army. The child was doing well in her pre-school.
He testified the child’s weight went from the 25th percentile to the 2nd percentile while she was in Germany, but she started gaining weight with him. He was also concerned the mother did not have her wash her hands or dress her for the weather.
The father argued the custody evaluator had not considered the mother’s mental health issues, including anxiety and depression. She sent texts about “anxiety attacks” and her medicine not working.
The father acknowledged he texted that the child would be happier in Germany and things would be “better for her there” when the mother informed he she was staying. He said he was “in shock” and did not actually believe staying in Germany was in the child’s best interest.
Mother’s Testimony
The mother testified she was the child’s primary caregiver after they moved to Texas.
She said she intended to return to Texas, but stayed in Germany after the father told her the marriage was over and she should stay there. She acknowledged he told her to bring the child back a few days later.
She let the father stay in her apartment with the child in Germany during the Hague proceedings.
She said they agreed she and the child would stay at the father’s apartment in Texas and he would move into base housing. When he could not find housing, she stayed with a friend.
When the mother reported alleged abuse to the police, the father told them she was dangerous and would “take off” with the child. He did not allow her unsupervised access to the child after this incident.
She said she went back to Germany because she was pregnant and needed medical care. She said the child and her new partner were “very close.” She lived with her partner in Germany on his family’s farm.
The mother said she had a “very tight and loving family.” She had sent texts to the father about her brother’s behavior, but said he had gone to therapy and was not often around the child.
She testified she had been the child’s primary caregiver since birth and had her family’s support. She said the child had gone to school in Germany and would be safer there. The mother testified the child would be at daycare for over ten hours living with the father due to his work hours, while she only worked part-time.
She had only lived with her partner for four months. She testified she could not live in the U.S. because he had to stay in Germany due to the family farm. She also testified she would have to return her green card after the divorce.
Divorce Decree
The trial court named both parents joint managing conservators, but gave the father the exclusive right to designate the child’s primary residence. The mother would have that right if the father received military orders for deployment, mobilization, or temporary military duty greater than 21 days.
Motion for Reconsideration
The mother moved for reconsideration. The custody evaluator testified he did not believe the mother had significant mental health issues. He found her relationship and residence were stable. He found the child had a loving relationship with her extended family in Germany.
The mother testified she had not wanted to leave the child, but she did not have a place to live or access to medical care for her pregnancy in Texas. Additionally, she only got to see the child on weekends.
The court denied her motion for reconsideration and she appealed.
Appeal
The mother argued the trial court abused its discretion by not following the custody evaluator’s recommendations, but case law has held a court is not required to do so.
She also argued the court abused its discretion because she had been the child’s “sole provider since birth” and had a strong support system. The court acknowledged she was the primary caregiver while the child was a baby, but noted that changed when she returned to Germany.
The mother also argued the father did not have an adequate support system. There was evidence the father and child had a close relationship with the child’s godfather and his family and socialized with other neighbors and friends. Additionally, the mother had sent the father texts about the lack of support from her mother and alleged her brother had mistreated his wife and children.
The mother also argued the court abused its discretion due to the father’s position in the military. There was evidence the father planned to stay in his current position. Additionally, the decree provided for the mother to have the exclusive right to designate the child’s primary residence if he was deployed. She also pointed to the long hours the child would spend in daycare, but there was evidence the father’s work ended at 3:30 p.m. and the child was thriving in pre-school.
The mother also argued she had not kept the child away from the father. She argued they bought one-way tickets for the original trip to Germany, and that the father told her they should stay there. The appeals court noted there was evidence they bought one-way tickets because they did not know how long it would take for the mother to obtain the child’s birth certificate in Germany. There was also evidence the father told her to bring the child back, but she did not do so until they reached an agreement in the Hague proceedings. There was therefore some evidence supporting an implied finding the mother kept the child from the father, so the court did not abuse its discretion.
The mother also argued the father was not able to co-parent with her. The custody evaluator, however, had testified there was a limited need for co-parenting because the parties lived in different countries, so the court could have determined this issue was not determinative.
The mother also argued the court “mischaracteriz[ed]” her romantic relationship and employment history. She had only been living with her partner for four months at the time of trial. She worked at an art factory at the time of trial but was working as a hair stylist a few weeks later. The court could have determined her romantic relationship and employment were not stable or consistent.
The appeals court concluded the evidence supported the court’s implied findings and that the court “acted reasonably and properly applied its discretion. . . .” The appeals court affirmed the judgment.
Seek Legal Advice
Custody and visitation schedules can be difficult when the parents live in different countries. If you are facing a divorce or other international custody dispute, a skilled Dallas custody attorney can help protect your rights. Schedule a consultation with McClure Law Group at 214.692.8200.