Dallas Divorce Lawyer Blog

If you are a parent involved in a divorce with your children or in a suit affecting the parent-child relationship, you have to be careful in terms of deciding what conservatorship you ask for, or even agree to. In particular, let's say that the other parent has a lot of personal issues and you would prefer that they not be in your child's life because it would not in the child's best interests. You contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that there are two choices--either request that the Court deny the parent access to the child; or, request that the parent's access be limited. You want the other parent to be completely denied possession. However, your attorney advises that this may not be the best choice.

This is because of a recent opinion in Fish v. Lebrie, where the Austin Court of Appeals established that when a parent's access to the child is completely denied, that is essentially the same as terminating parental rights. Therefore, if a parent's access is going to be denied, then it must rise to what the Court termed as "extreme circumstances" that would justify keeping the parent from the child. However, the court left it unclear as to what this would mean; but yet also suggested that a parent's access could be drastically limited and not terminated, and that would be okay.

The court might have been unwilling to draw a bright line rule in that particular case because the mother presented evidence that the father emotionally and physically abused the child. But, the father had the child's psychologist testify that this wasn't true.

Even though that case involved conflicting evidence, it seems that it would be safe just to limit the other parent's access to the child rather than completely deny access. That way, one would avoid the issue presented in the Lebrie case. This is because a parent's right to their child is considered constitutional and one of the most protected rights. However, note that this recent appellate opinion doesn't make denying a parent's access to the child an impossible task.

Based upon this, you will need to ensure that the facts of your case do not present the dilemma faced in the Lebrie case and be cautious when seeking to deny the other parent possession of or access to the child.

You're in the midst of a divorce or suit affecting the parent-child relationship and you're discussing the rights and duties that each parent will have with respect to the child or children. In particular, you are discussing additional ways to have "visitation" with your child outside of the standard possession periods that you will have. For instance, what about "electronic" communication when the child is in the other parent's care? So, you contact your attorney at Guest & Gray, P.C. to inquire about this additional right to your child.

In some instances when one parent won't see the child as often or if the parents reside more than 100 miles apart, courts can include electronic communication provisions when it is appropriate. This means that you can email or, with the advancements of technology, Skype with your children now when they are with the primary parent.

However, the 14th District Houston Court of Appeals recently held that orders that allow you to do so must be specific in order to be enforceable. In fact, that Court held that if there is an electronic communication provision within the final orders, it must comply with Texas Family Code §153.015(c) which lists out 3 requirements for the named conservators.

While all three requirements must be listed in the final orders, in particular, this court focused on the second requirement which states that "each conservator subject to the court's order shall notify the other conservator with the e-mail address and other electronic communication access information of the child." That, the Court held, is a mandatory provision which must be included in any trial court's final orders when it comes to electronic communication.

Therefore, if you've been granted this special access to the child, it's the conservators' responsibilities to notify each other when the child's information changes--per statute and Court orders, you must do so.

It has been a few months since you've finalized your divorce or suit affecting the parent-child relationship and you either realize that you're not happy with what was ordered, or the other parent hasn't been complying with the orders. In particular, let's say you do not like the conservatorship ordered, and it has been less than a year.

You contact your attorney at Guest & Gray who informs you that we can file a petition to modify. However, there is a specific requirement with these types of pleadings. Your attorney must attach an affidavit on your behalf which is signed and notarized and this affidavit must set out the facts and establish that either (1) the present environment endangers the child's physical health or impairs the child's emotional development or (2) the primary conservator agrees to the modification and the modification is in the best interests of the child.

The key is that the affidavit must be sworn to (signed by affiant) and notarized. If it's not, it's fatally flawed and the petition can be thrown out. However, the the other side must catch this flaw. This is based on the recent opinion in Serafn v. Seal by the Austin Court of Appeals wherein the Court set a deadline for when this affidavit is considered fatally flawed--designating when an issue with the affidavit must be brought to the court's attention. The Court held that you must object in the very beginning if you notice an issue with the affidavit. If you don't, and you wait until appeal of the case, according to the Austin Court of Appeals, you will have waived your complaint of the defective affidavit. So, two lessons here--first make sure that your affidavit is in compliance with the rules. And two, if you're the Respondent in the matter, be timely in your objections.

You are in the midst of a contested custody proceeding, whether it is with your present spouse or another relative to the child. You are concerned with allowing the judge to decide who your child should live with. You don't think it would be the best for your child. So, you contact your attorney at Guest & Gray in Kaufman County who informs you of your options. If you don't want the Court to decide, there's always the option of a jury of your peers.

A parent is entitled to a jury trial on this issue of conservatorship and the jury's verdict can't be changed by the court. And, the 1st District Houston Court of Appeals in In Re Kathleen Elizabeth Reiter held that when a parent requests a jury trial, a court must grant the jury trial and this can't be bypassed by the other party. Therefore, if you request a jury trial but aren't granted one, your attorney will gladly bring this case to the court's attention.

Additionally, the Austin Court of Appeals supported this right to jury trial in Winters v. Winters. There, the Court held that even where a parent had committed an act of family violence against the other parent, while this may mean that you can argue that the parent can't be appointed joint managing conservator, that doesn't mean that if they request a jury trial, they're not entitled to one. Therefore, just because a parent committed an act of family violence, that doesn't prevent them from seeking a jury trial on the issue of conservatorship.

Thus, it is important that you are aware of all of your rights in a custody suit. As well, it's important to know the strength and meaning of those rights.

You are unhappy with how custody and possession turned out for a child in your life, and you're not the parent. But, you want to do something about it because you were part of the original proceeding, and you feel as though the circumstances (facts and evidence) have substantially changed since the judge rendered his/her opinion. And, you feel as though if the judge was updated on the new facts, then that decision could be changed. Maybe the child's conservators haven't been complying with the judge's orders or they've started doing things that you believe are harmful to the child such as using controlled substances. However, you are concerned about how to even go about getting this process started. So, you contact your attorney at Guest & Gray in Kaufman County.

Your attorney advises that a nonparent can file a petition to modify the parent-child relationship if that nonparent was a party affected by the previous order that they are seeking to modify. In fact, the 14th District Houston Court of Appeals in In the Interest of S.A.M., P.R.M., and S.A.M., Minor Children produced a clear ruling for this type of standing and it broke it down into two analyses--what is a party and what does it mean to be affected.

The court held that a party, quite simply, is a nonparent who was actually a party to the prior original suit. That is, if the nonparent was an intervenor and the court never struck this designation. Or, if a nonparent filed the original proceeding or was a respondent.

Furthermore, a party is affected if they are granted rights and duties in the final orders. Meaning, if a nonparty is given a certain right to the child like to pick them up from school or have certain visitation, and that nonparty is also supposed to notify the other parties of any change of address.

The Court held that if both of these components are established, then that would be a party affected by prior orders. Therefore, there is a lesson to be learned here--for parties wanting to keep nonparents out of the picture, do not include them in the original orders because if anything, they could establish standing through this avenue. Or, if you are a nonparent, try to find a way through negotiations to be included in the final orders.