Texas Custody Modification Upheld Despite Conflicting Evidence

iStock-1139699594When a court considers Texas child custody and visitation, the child’s best interest is the primary concern.  The court considers certain factors, including what the child wants, the child’s current and future needs, any danger to the child, the parents’ respective abilities, programs available, the parents’ plans for the child, stability, any acts or omissions indicating the relationship between the parent and child is not proper, and any excuse for those acts or omissions.

A father recently appealed a denial of his petition for modification and grant of the mother’s counterpetition.  At the time of the divorce, the trial court ordered the parties not to move from a specific area without a modification order or written agreement filed with the court.  Neither parent was given the exclusive right to designate the child’s primary residence.  Nonetheless, both parents moved outside of the geographical boundary after the divorce.

Father Seeks Modification of Prior Order

The father petitioned for modification, alleging there was a material and substantial change in circumstances.  He alleged a history or pattern of neglect by the mother. He sought to be awarded the exclusive right to determine the child’s primary residence.  The mother asked both parents be named joint managing conservators but that she be given the exclusive right to determine the child’s primary residence.  She also asked the court to expand the geographic restriction.

At trial, the mother testified she moved outside the geographic restriction soon after the divorce.  She said the father agreed to her move and to having the child every weekend.  The father testified they intended the agreement to last while the mother was in school. He said she moved twice more without addressing the agreement and he expressed concerns these moves were negatively affecting the child.  He also expressed concerns about her school attendance and behavior toward her teachers.

On the other hand, the father moved five times since the divorce, living outside of the geographic restriction once.  He testified his wife helped parent the child.  He said he was concerned the mother’s current marriage to her wife confused the child.  He said the mother did not include him in health and education decisions, either.  He also said he did not think she would follow court orders as the child’s primary conservator.

The father’s wife testified the child’s behavior had changed.  She said the child did not want to eat and was clingy.  The father’s wife was concerned about the mother’s relationship stability, because she had dated numerous men since the divorce.

The child’s paternal grandfather testified the father and his wife had a good relationship with the child.  He said it would be in the child’s best interest for her father to have the right to determine her primary residence.  He said the child had changed and was scared to be alone.

The child’s former principal testified the child was often late, but her attendance was not abnormal.  She had not noticed any changes in the child’s behavior and did not have any concerns about her.

The child’s kindergarten teacher testified about issues with the child being disrespectful and she was more disruptive when with her mother.

The mother’s sister testified the mother and child lived with her about a year.  She had no concerns about the child living with the mother and the mother’s wife.  She said it would be in the child’s best interest to stay with her mother through the week.

The mother testified she and the child lived with her boyfriend after the divorce.  She then moved outside the geographic restriction to go to nursing school, to which the father had agreed.  She said she was engaged for two years, but her fiancé never stayed overnight when the child was there.  She moved again when they eventually broke up.  Her current wife eventually moved in with her after they had begun dating.  The mother testified her wife and the child had a good relationship.  She admitted the child was confused about the mother’s relationship at first, but then she talked to her about same-sex marriages.

The mother testified the father had not objected to her moves.  She admitted that she did not get the father’s approval for the child’s healthcare decisions, but denied keeping him from talking to the child on the phone.

She said changing the child’s home and schedule would be detrimental to her.  She testified the child was doing well and liked her new school.

The trial court denied the father’s petition and granted the mother’s.  The court appointed both parents joint managing conservators and granted the mother the exclusive right to designate the child’s primary residence in Harris County.  The trial court found a material and substantial change in the circumstances of both parents and the child.  The court found the mother could provide a more stable home.  The trial court found the mother having the right to determine the child’s primary residence was in the child’s best interest, as were the other rights and duties awarded to each parent.

Father Appeals Trial Court’s Denial of His Requested Modification

The father appealed.  He argued the trial court abused its discretion when it gave the mother the exclusive right to designate the child’s primary residence without legally and factually sufficient evidence.

An appeals court reviews a modification of conservatorship for an abuse of discretion. The appeals court must consider whether the trial court had sufficient evidence to exercise its discretion and whether the court erred in applying that discretion.  A number of witnesses testified for both parties, providing somewhat conflicting information. The appeals court found there was some evidence supporting the court’s decision to name the parent’s joint managing conservators and give the mother the exclusive right to designate the child’s residence and that the trial court’s decision was reasonable in light of the evidence. The appeals court also found no error in the trial court’s exclusion of one of the father’s witnesses and affirmed the trial court’s judgment.

Call the Experienced Child-Custody Attorneys at McClure Law Group Today

Ultimately, the trial court has significant discretion in determining the best interest of the child and the credibility of the evidence. If you are dealing with a custody issue, a skilled Texas child custody attorney can help you.  Call McClure Law Group at 214.692.8200 to schedule a consultation.


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