When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children. A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations. The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development. If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest. Tex. Fam. Code Ann. § 156.102(a).
In a recent case, a father appealed a summary judgment denying his petition for modification. The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence. In 2018, the trial court gave the mother that right, with a geographic restriction.
Father Files Modification Suit
The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children. He also alleged the mother neglected the children.
He asked the court to name him the sole managing conservator and either deny access to the mother or only allow supervised visitation. In his affidavit, he described three events he alleged happened after the previous order. He alleged the mother’s eighteen-year-old son had stuck his fingers into one child’s throat to remove popcorn the mother told the child he could have. He also alleged the mother left the children in the care of her sister and that the sister’s husband had previously abused the mother’s older daughter. He also alleged the mother had alienated the children by not allowing him access to them and sneaking them out of the dentist’s office when he came to the appointment.
Mother Moves for Summary Judgment to Dismiss Father’s Suit
The mother moved for summary judgment, arguing the father could not provide any evidence of a material and substantial change of circumstances warranting modification and that the modification was in the best interest of the children.
In his response, the father attached thirty exhibits. The trial court did not expressly rule on the mother’s objection to about half of the exhibits. The trial court granted the summary judgment of the request based on Section 156.101(a)(1), material and substantial change in circumstances, but not based on possible endangerment Section 156.102(b)(1).
The mother filed another motion for summary judgment, with the father attaching the same evidence to his response.
The father then filed another amended petition to modify, now also based on a belief that one of the children, who was at least 12, would say tell the court who he preferred to have the exclusive right to designate his residence.
Trial Court Grants Summary Judgment, Dismissing Father’s Claim
The court granted summary judgment in favor of the mother. The father appealed.
The mother argued the father was limited to seeking modification of the conservatorship under Tex. Fam. Code Section 156.102. There was no dispute this section applied to the father’s original petition, but there was dispute over whether it applied to his amended petitions. The mother argued the amended petitions did not plead new or different transactions or occurrences and therefore related back to the original petition with Section 156.102 applying to them all. The appeals court disagreed, noting that the heightened pleading requirements of that section do not apply to an amended pleading filed more than a year after the prior order.
The father argued the trial court erred in granting summary judgment on his claim to modify under Tex. Fam. Code Section 156.101(a)(2) because the mother had not sought summary judgment on that ground.
The appeals court pointed out that a trial court may not grant a no-evidence summary judgment motion based on any ground not included in the motion. The mother filed the second motion on June 26, 2020 and the father filed his second amended petition raising the new ground for modification on July 10. The trial court did not consider the motion until January 5, 2021. The mother did not amend the motion or file a supplemental or additional motion to address the new ground.
The appeals court found the trial court erred in granting the no-evidence summary judgment motion on a ground not included in the motion. The appeals court reversed the judgment and remanded the case. The appeals court declined to address the father’s appeal of the rulings on the other two grounds for modification, noting they were subject to reconsideration on remand. The appeals court further pointed out that the father was no longer subject to the heightened pleading and proof requirements of Section 156.102 and that the proceedings on the remaining claim could be relevant to whether a material and substantial change had occurred to support modification under Section 156.101(a)(1).
Modification Rules are Strict – Call the Experienced Attorneys at McClure Law Group to Discuss Your Case Today
This case shows that the heighted pleading standards applicable to a petition to modify the person designated to establish the children’s primary residence may not apply to subsequent pleadings filed more than a year after the prior order. If you want to modify custody of your child, a skilled Texas custody lawyer can advise you regarding the requirements applicable to your situation. Set up a consultation with McClure Law Group by calling 214.692.8200.