Conservatorship

How Texas Courts Determine the Best Interests of a Child in Termination Proceedings

November 5, 2023 | by Robert Guest

Family law cases are often emotionally charged and complex, particularly when it comes to parental termination proceedings. Termination of parental rights is a significant legal decision with profound implications for all parties involved. The Texas Court of Appeals recently released a judicial opinion that sheds light on the factors considered in Texas family law when determining the best interests of a child for purposes of a parental termination proceeding.

In Texas, the welfare and best interests of the child take precedence in cases involving termination of parental rights, as per Section 161.001(b)(2) of the Texas Family Code. The courts rely on a set of factors to make this determination, as highlighted in a recent judicial opinion excerpt:

Child’s Wishes: The child’s own expressed preferences play a role in the decision-making process.
Emotional and Physical Needs: The court examines the child’s current and future emotional and physical requirements.
Emotional or Physical Danger: Consideration is given to whether the child faces emotional or physical harm, both currently and in the future.
Parenting Abilities: The abilities of the parties seeking custody are scrutinized.
Programs Available: The existence of support programs for the involved parties is taken into account.
Plans for the Child: The court assesses the plans outlined by the parties seeking custody.
Stability of Proposed Placement: The proposed placement’s stability is a critical factor.
Parent’s Conduct: Parental behavior that indicates an improper parent-child relationship is reviewed.
Excuses for Parent’s Conduct: Any excuses or justifications for the parent’s conduct are considered.

Texas Court Sides with Mother in Custody Dispute Demonstrating the Importance of Child Interview Statute

July 10, 2023 | by Robert Guest

In a June 2023 case before the Texas Supreme Court, a mother appealed the trial court’s decision that allowed her children’s father to have the exclusive authority to decide where their four children should live. According to the mother, the judge had unfairly denied her request to have her 13-year-old child interviewed in the judge’s chambers, which ultimately resulted in an incorrect verdict. Looking at the record of the case, the higher court agreed with the mother and remanded part of the case in accordance with her request.

Facts of the Case

According to the opinion, the father, in this case, filed for divorce, and he asked the court to make a custody decision for the couple’s four children. In Texas, Section 153.009(a) of the Family Code allows parents to request that judges interview their children privately in chambers to take their wishes into account when making a cursory decision. If a parent requests this interview, however, he or she waives the right to a jury trial and is only able to proceed under a non-jury or a bench trial.

Early on in this case, the mother requested an interview between the judge and her 13-year-old child. By conducting the interview, said the mother, the judge would be able to understand that her children preferred to reside with her. To request the interview, the mother emailed the court, called the court 20 times, made an oral request on the record during the hearing, and filed two briefs after trial. The court, however, did not interview the child, and it also failed to offer the mother a jury trial in the absence of granting her request.

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.

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.