Texas Divorce Attorney Blog
A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.
According to the appeals court’s opinion, the child was born in October 2019. The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence as well as other exclusive rights. The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.
Modification Proceeding
The father petitioned for modification, seeking a standard possession order without supervision. The mother did not appear at the hearings, and the court granted the requested order.
The father later moved for enforcement. He testified the mother failed to turn over the child on multiple occasions. The mother did not appear at the hearing. The trial court granted the father’s motion to enforce and ultimately had the mother arrested for failure to appear.
The father also filed an amended petition to modify, seeking the exclusive right to designate the child’s primary residence and child support. The mother did not file a response to the petition to modify and again did not appear at the hearing. The father’s attorney stated they could “just make a statement” or could call the witness. The trial court told the attorney to just make a statement. The attorney stated the father had been denied access to the child and was still being denied access at least one time in the past month. The attorney asked the court to modify the order to make the father primary. The court agreed to sign the order and also stated it would sign the order terminating child support. There was no testimony given or other evidence presented at the hearing.
The court’s order gave the father decision-making rights, including the right to designate the child’s primary residence. The mother was given a standard possession order with expanded visitation and ordered to pay child support.
Mother’s Appeal
The mother appealed after the trial court denied her motion for a new trial.
The appeals court concluded that the burden of proof on the moving party in a modification proceeding applies even when the non-moving party defaults. The appeals court noted that this rule has generally been applied within the context of a divorce proceeding, but concluded it also applied to modification proceedings even if there was no divorce action. The court based this conclusion on the principle that the paramount concern in a custody matter is the child’s best interest, which must be proven by evidence. The appeals court therefore held that a petitioner seeking modification of a child-conservatorship order mut prove the required allegations of the motion even when the other party defaults.
The mother argued the trial court failed to prove either of the required elements for modification. The father did not present any evidence showing the circumstances when the prior order was signed or how they had changed. He did not present any evidence showing that the modification was in the best interest of the child. The attorney’s statement did not constitute evidence. The appeals court also noted that there were no facts stated in the father’s petition that could be sufficient to prove either a material and substantial change or that the modification was in the child’s best interest. The appeals court concluded that no evidence had been presented to support a finding of a material and substantial change in circumstances or that the modification was in the best interest of the child.
The father argued that evidence had been presented at earlier hearings that the mother denied the father possession in violation of the court’s orders. He argued that the history of noncompliance and failure to appear was sufficient to support modification.
The appeals court pointed out that a trial court can only consider testimony from a prior hearing if the transcript has been authenticated and entered in evidence. Additionally, a court cannot take judicial notice of the truth of allegations contained in the pleadings and other documents. The appeals court concluded the trial court could only take judicial notice “of facts that could not reasonably be disputed,” providing the mother’s failure to appear as an example. It could not, however, take judicial notice of the father’s allegations or testimony that she denied access to the child. The appeals court also concluded that the mother’s failure to appear did not, in and of itself, prove that there had been a material and substantial change or that modification was in the child’s best interest.
The appeals court concluded that there was insufficient evidence to support the modification and that the trial court abused its discretion by granting the modification.
Seek Experienced Legal Guidance
It is important for parents to appear and participate in child custody proceedings. This case shows, however, that a parent may not necessarily receive a modification just because the other parent fails to appear. If you are involved in a custody dispute, a knowledgeable Dallas custody modification attorney can help. Call 214.692.8200 to schedule a consultation with McClure Law Group.