Dallas Divorce Lawyer Blog

Are Judges Required to Interview Children in Custody Cases?

May 17, 2022 | by Robert Guest

When Texas parents are divorcing or fighting over custody of children that they share, many factors are used by the courts to determine the best custody arrangement. The most important consideration that courts consider when awarding custody is what is in the “best interests” of the children. Various factors can contribute to what a court finds is in a child’s best interests, one of which is the desire or choice of the child themselves. Parents will often request that a judge interview a child in their chambers (in camera) and ask them which parent they would like to live with. Under some circumstances, courts have the ability to perform an in-camera interview of a child, however, it is not always done. The Texas Court of Appeals recently affirmed a family court’s decision not to perform an in-camera interview in a divorce case.

According to the facts discussed in the recently published appellate opinion, the parties were married in 2003 and had four children before separating in 2017. During the divorce proceedings, the mother requested that the court perform an in-camera interview of the parties’ oldest child, who was 13 years old at the time. Under Texas law, a judge shall interview any children over 12 years old to determine their placement preference. The family court denied the mother’s request, ruling that she had waived her right to have the child interviewed and failed to file the requisite motion with the Court. After a trial in which the eldest child was not interviewed by the judge, the father was awarded primary custody of the children.

The mother appealed the family court ruling, arguing that the court was required under the law to perform an in-camera interview of the child. On appeal, the high court acknowledged that Texas law requires an in-camera interview of children over the age of 12 if requested by either party, however, the ruling was still upheld. Texas appellate procedure requires an appellate court to perform a harm analysis in the event of an error below. If the court determines definitively that a lower error was harmless and that resolution of such error would not change the final ruling, then the court shall not reverse the ruling. Because the child’s desires had been adequately determined through the testimony of a therapist as well as through a custody evaluation performed by a social worker who did interview the child, the court found that the lower error was harmless and did not change the lower ruling.

Dallas Judge Evaluates Credibility of Abuse Allegations in Child Custody Case

May 10, 2022 | by Robert Guest

Custody disputes and other family law matters can be some of the most difficult and emotional conflicts for courts and judges to hear. Fact finders must balance the importance of protecting the safety of children with the unfortunate fact that many parents manufacture or exaggerate claims of abuse in order to bolster their custody or divorce case. Ultimately it is up to the finder of fact (judge or jury) to determine the credibility of abuse allegations lodged against a party. A Texas appellate court recently affirmed a Dallas family judge’s ruling that the allegations of abuse against a father involved in a custody case were not credible.

The parties in the recently decided case were a married couple who share four children. Around 2017, the parties sought a divorce based upon irreconcilable differences. As the divorce and custody determination played out, the mother made allegations that the father had been abusive several times to her in front of the children. Under Texas law, an abusive parent or spouse faces difficulty in obtaining primary custody of the children. While not directly controverting the mother’s allegations, the father did elicit the testimony of a family therapist who treated the couple, as well as another professional who completed a custody evaluation of the family to determine the best placement for the children.

Based on the testimony of the parties and professional witnesses, the family judge determined that the mother’s allegations of abuse did not demonstrate the “pattern of abuse” that would be required to further restrict the father’s custody rights. Specifically, the judge noted that both the marriage therapist and the custody evaluator found the mother to be unstable and agitated. The judge further determined that the allegations of abuse appeared to be made primarily in support of the mother’s legal case, and not based on any actual abuse.

Texas Appellate Court Rejects Biological Father’s Petition for Parental Rights

April 30, 2022 | by Robert Guest

Across the United States and much of the world, a child born to a married couple is assumed, by law, to be the child of the husband. Without any legal action or adjudication of parentage, the biological relationship between a husband and the child of his wife is not relevant to the husband’s parental rights over the child. Because not all marriages function monogamously, and the biological parentage of the children of married couples is not always known for certain, conflicts can arise over the parental rights to a child when a biological father is challenging the husband of the mother over the rights to the child. The Texas Court of Appeals recently rejected a biological father’s request to be adjudicated the father of his biological son, ruling that the petition was filed too late for the court to consider granting the relief requested.

The plaintiff in the recently decided case is a man who fathered a child with the wife of the defendant while the couple was separated. The couple did not divorce, and when the child was born, the defendant was assumed to be the father and was placed on the child’s birth certificate. According to the facts discussed in the complaint, the biological father suspected that he was the father of the child, and the child lived with him for part of the time during the first five years of her life. The plaintiff filed a parentage action shortly after the child’s fifth birthday seeking to obtain the parental rights for his biological child.

In response to the plaintiff’s suit, the defendant asked the court to dismiss the claims. The defendant argued that under Texas law, the biological father of a child born to a married woman must file a parentage action before the child’s fourth birthday to obtain an adjudication of parentage from the court. Because the petition was filed over five years after the child’s birth, the defendant alleged that the plaintiff had no grounds to seek parental rights over the child. The trial court rejected the defendant’s arguments and adopted the plaintiff’s position that the four-year statute of limitations period for establishing parental rights violated the U.S. Constitution, as parents have a fundamental right to parent their natural children that cannot be denied arbitrarily.

Dallas Appeals Court Refuses to Enforce Contract Support Payments

April 8, 2022 | by Robert Guest

Texas family courts are entitled to make various financial awards to one party or another as part of a divorce judgment or settlement. The most common payments ordered by a family court are for child support and are designed to allow the custodial parent to support the children. Alimony can also be ordered, which is done in order to allow the lower-earning spouse to maintain a similar standard of living as to that which they were accustomed to during the marriage.

Texas family courts also are responsible for dividing marital property, which includes real estate, personal property, as well as financial assets. In addition to these payment orders, family courts are entitled to enforce any other financial agreements or contracts that are made between divorcing parties as part of a settlement agreement. A Dallas appellate court recently denied a woman’s request to enforce a contract made between her and her ex-husband as part of their divorce settlement.

The parties from the recently published opinion were married in 2005 and divorced in 2015. As part of their divorce settlement agreement, the ex-husband agreed to pay approximately $10,000 per month to the wife in order to support “an alternative lifestyle” for her and the children. As part of this agreement, the wife would use the money to fund travel and living abroad for her and the children, as a means for personal development.

What Happens if a Spouse Dies During a Texas Divorce?

March 25, 2022 | by Robert Guest

Divorce can be a challenging and emotionally fraught process filled with unexpected events. While some civil lawsuits can survive the death of a party, Texas divorce cases do not operate in the same manner. Under case law, Texas divorce proceedings do not survive the death of a party, and the court will generally dismiss the case before a final judgment.

Recently, a woman challenged a court’s ruling dismissing her divorce petition upon her husband’s death. According to the court’s opinion, the woman and husband married in 1993, divorced in 2000 and remarried in 2019. In 2020 the woman filed for divorce, asking the court to divide their community estate. The husband answered the petition; however, his attorney filed a suggestion for death in March 2021. The woman asked the court to issue a “scire facias” to require the man’s children from a previous marriage to defend the divorce. The lower court found that the divorce petition was abated upon the husband’s death, and as such, the court did not have subject-matter jurisdiction. On appeal, the woman argues that no statute bars property division upon the death of a party to a divorce.

In Texas, courts have found that abatement upon the death of a party extends to property rights of either party. As such, the court found that the trial court did not err, and they affirmed the trial court’s order. In cases like this, a deceased spouse’s property will likely pass through the terms of their estate plan or intestate succession if no will exists.

Texas Court of Appeals Rejects Property Division in Divorce Decree

March 25, 2022 | by Robert Guest

Texas divorces that include many assets can be complicated. The State of Texas follows laws that assume all property obtained by a couple in the course of their marriage is “community property” that should be divided equally in the event of a divorce. Many factors can come into play to rebut this presumption of community property. As a result, Texas family courts sometimes divide assets unequally in the interest of fairness. The Texas Court of Appeals recently addressed a claim by a divorced spouse that the family court incorrectly awarded a piece of property to his ex, when it should have been awarded to him as his separate property.

According to the facts discussed in the appellate opinion, the parties in the recently decided case were married in 1997. Each party had significant assets prior to their marriage, and they agreed to a premarital agreement (PMA) before getting married. Under the PMA (colloquially known as a prenup), each party retained an exclusive individual interest in the property they owned before the marriage, as well as their respective incomes earned during the marriage. While married, the couple acquired several pieces of real property, as well as many business interests. Although the PMA was clear about the parties’ individual property and incomes, the parties appeared to commingle their assets in a way that made it difficult to determine what money was used to purchase each property.

In 2012, the parties filed for divorce. As part of the divorce proceedings, the properties and assets of the couple were divided. The family court determined that fourteen pieces of real property, which were deeded in the husband’s name, were actually community property as they were purchased with commingled assets. After the ruling was final, the husband appealed the decision to the Texas Court of Appeals, arguing that the properties should have been determined to be his own individual property based on the PMA and other factors.

What Evidence Do Courts Consider When Dividing Property in a Texas Divorce?

February 22, 2022 | by Robert Guest

The Court of Appeals of Texas reviewed a man’s appeal regarding the property division set out in his final divorce decree. According to the court’s opinion, after 25 years of marriage, the wife filed for divorce and served the man with the process. The wife appeared at court with her attorney; however, the man failed to answer the filing or appear at court. At trial, the judge awarded the wife all of her retirement accounts, half of the husband’s retirement accounts, the parties’ home and all contents, her military identification and identification, and all property in her possession. Five months after the divorce decree and “just and right division” of the parties’ estate, the husband challenged the property division.

Texas family law provides that to prevail on an appeal, the appellant must establish that: they filed the suit within six months of the order, they were party to suit, they did not participate in the hearing that resulted in the judgment, and the error is apparent on the face of the record. In this case, the husband argues that no evidence exists to support a just and right property division of the couples’ estate.

The court reasoned that, generally, if a defendant fails to answer, the failure is taken as an admission of the plaintiff’s factual allegations. However, the rule has limitations in the context of a divorce case. If a divorce defendant fails to answer, the plaintiff must still present evidence to support their demand for property division.

Texas Supreme Court Affirms Termination of Father’s Parental Rights

February 15, 2022 | by Robert Guest

The State of Texas has an interest in the welfare of children living in the state. When there are accusations that a child is being abused or neglected, the Texas Department of Family and Protective Services (the Department) may get involved to protect endangered children. If a Department investigation finds that a child is at risk of abuse or neglect, custody of the child may be taken from the parent or parents and placed in the temporary custody of a relative or other responsible adult.

When child welfare proceedings are initiated by the Department, parents are given a safety plan outlining what needs to be done to safely return the child to their custody. If a parent substantially and repeatedly fails to uphold their end of a Department service plan, the Department may seek to terminate that parent’s parental rights, paving the way for the child to be adopted by another family that can safely care for them. The Texas Supreme Court recently addressed a Texas Court of Appeals decision that had ordered a new trial after a man’s parental rights had been terminated.

The parent in the recently decided case was brought to the attention of the Texas Department of Family and Protective Services when an anonymous source reported that he and the child’s mother had hurt the child. An agent from the Department visited the parents’ home and noted that the child was bruised. Later, test results showed that the child had a measurable amount of cocaine and methamphetamine in her system. As a result of this, an emergency custody order was made and the child was placed in the care of a relative. In order to regain custody of the child, the father was placed on a safety plan that required him to submit to drug and alcohol testing and seek psychological care. Because the father failed to meet the requirements of the service plan, the Department initiated termination proceedings.

Spousal Maintenance Limitations Under Texas Law

January 31, 2022 | by Robert Guest

Spousal maintenance, commonly referred to as spousal support or alimony, refers to financial support that one spouse pays to the other after a Texas divorce. After the Texas Legislature introduced HB901, the state’s spousal maintenance laws underwent massive changes. The expansion increased the possible duration and amount of payments.

Under Tex. Fam. Code Ann. § 8.054 courts do not automatically award spousal maintenance, and instead, these determinations fall under a “rebuttable presumption” that support is not needed. Spousal support can drastically impact a person’s livelihood, and individuals should consult with a Texas divorce attorney to request or rebut spousal maintenance.

Recently, a Texas appellate court issued an opinion addressing a Husband’s challenge to a trial court’s spousal maintenance order. According to the record, the trial court entered the order on December 5, 2010, requiring the Husband to pay his ex-wife $5,000 a month through February 28, 2027. Husband argues that the order exceeds the limitations under Tex. Fam. Code Ann. §§ 8.054(a)(1)(B) and 8.055(a)(2). Under certain circumstances, these laws prohibit spousal maintenance orders that remain in effect for more than seven years after the date of the order. Further, the statute prohibits maintenance orders that require payment exceeding 20 percent of the obligor’s monthly gross income.

The Importance of Following Texas Child Custody Agreements

January 18, 2022 | by Robert Guest

While all aspects of a divorce can elicit uncomfortable and distressing feelings, those involving children often present additional challenges. Unlike many other states, the Texas family court system addresses custody and visitation as “conservatorship,” “possession,” and “access.” These orders are documents that state when each parent will spend time with the child and under what circumstances. A party can enforce these documents when a judge includes them in a court order. An attorney can assist a parent in drafting a plan to ensure that it meets the state’s guidelines. Even if parents agree to a parenting plan and agreement, circumstances may be fluid, and issues can arise immediately after the agreement or years down the line. In these cases, parties must abide by the parenting plan until a modification. The failure to do so can have long-term consequences on the defaulting parent.

For instance, recently, Texas appellate court issued an opinion in a case stemming from a trial court’s order holding a father in contempt of a custody order. The relevant facts involve the mother’s petition alleging that the father violated their custody decree by 1. Failing to provide tax documents; 2. Failing to execute necessary property transfer documents; and 3. Interfering with the mother’s possession of the couple’s child.

The mother claimed that she lost possession, one stemming from a flight delay and the other when the father refused to surrender the child at daycare at the end of his possessory period. The second incident arose when the mother told the father to drop the child off at daycare, stating she was “designating them” a competent adult. However, the father refused to enter the daycare, claiming that the woman must retrieve the child from the parking lot. The woman asked the court to hold the father in contempt, jail him for 180 days, in addition to other admonishments.