Articles Posted in Custody

In a recent family law case coming out of a Texas court, the father involved in the case appealed the trial court’s decision to modify the child support payments he was making to his ex-wife and child. On appeal, the father argued that the court did not have the right to modify their agreement, since the parties had signed a contract saying they would not make any changes to the agreement for three years after signing. Looking at the document in question, the court of appeals denied the father’s appeal and enforced the lower court’s modification.

Facts of the Case

According to the opinion, the mother and father in this case divorced in 2016 after having one child together. Originally, the father was ordered to pay the mother $500 in child support payments; this amount was calculated after considering both parties’ incomes and assets, as well as what would be in the best interest of the child.

In 2017, the mother asked the court to modify the agreement. She alleged that the original amount was not in compliance with the Texas Family Code, which sets out amounts for each party to pay based on their individual circumstances. The mother filed an additional petition to modify the child support payments in 2019, again asking for an increase in financial support from the father. In 2021, a bench trial was held virtually, and the court ordered the father to increase his contributions. The father appealed the court’s decision.

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In a recent family law case coming out of a Texas court, the mother involved in a custody suit appealed the court’s decision to modify a custody arrangement regarding her son. On appeal, the mother argued that the court had denied her of her right to be heard in court by imposing time limits on how long she could present her case to the judge. The court of appeals considered the mother’s argument but ultimately denied it, affirming the lower court’s decision.

Facts of the Case

According to the opinion, the mother and father in this case divorced in 2011 and agreed to share custody of their son. The divorce decree stated that the father would have the exclusive right to establish the primary residence of the child.

In 2019, the father learned of verbal and physical altercations between the mother and her new husband. He also learned that the mother was using drugs and drinking at home, as well as that she had obtained a British passport and was considering kidnapping the couple’s child and taking him to England. The father filed an emergency motion for a restraining order against the mother and asked the court to deny the mother access to their son.

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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.

Texas child custody laws are continually evolving, and courts must conduct a thorough analysis before making any determinations. The state recently replaced a significant amount of the language in their statutes to lessen the entire process’s negativity. For instance, custody is now referred to as “conservatorship,” that and “managing conservatorship” and “possessory conservatorship” replace “legal” and “physical” custody. Possession and access to the children refer to when the parents have physical custody or visit their children. Generally, Texas maintains two custody schedules, standard and extended standards, which dictate how and when each parent sees their children.

The Texas Family Code, Section 153, explains that child custody determinations should be viewed under the lens of “the best interests of the child.” While the Code presumes that joint custody is ideal, that arrangement does not always comport with the child’s best interests. Courts typically make their decisions per the state’s public policy concerns. The primary factors revolve around assuring that the:

  • The child will have continuing and frequent contact with parents who have established the ability to act in the child’s best interest,

Courts are working to head off problems with custody orders caused by the Coronavirus.  If you have a custody order you must keep up with these orders, since they apply to you. The most recent order on family cases in Kaufman County is from March 25th.

Standing Order Governing Possession and Access During the Shelter in Place Order of Kaufman County Judge Signed March 24, 2020

For all cases arising from the Family Law Courts of Kaufman County, the Court ORDERS that:

The Texas Family Code has a lot to say on what it means to be a father, what rights fathers have in regards to their children, and what obligations come along for the ride.

So first off, who is considered to be the father?

It is “a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive … father.” TFC § 101.024.

Dads are very important people. Very important to some really cool little people in this world. We are not say that because Dads are important that Moms are not. Moms are important too. Yet it seems, and maybe it’s just us, that during custody proceedings, the courts have to choose who is the most important to that kid. Then they give that winning parent the most Time. And Time is extremely precious.

In many cases, the most valuable parent award goes to Mom. Sometimes it’s Mom even when Dad has been doing most or the same amount of the caregiving, bathing, cooking, cleaning, homework supervising, and story-time-reading-before-the-kid-will-think-of-going-to-bed work.

Dads, stereotypically, have an uphill battle. So what is a good strategy for Dads fighting for more time with their kids? Dads who will fight to be in their kids lives, because their kids are important to them and they are important to their kids?

If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc.  The key is that this mistake has to be a clerical error—did it mix up the judgment of the court.  It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part.  If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue.  In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support.  Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later.  The problem was that the actual decree ordered mother to pay child support.  Mom filed a nunc pro tunc to fix this obvious error.  The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support.  Father challenged that.  In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time.  Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned.  The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child.  You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon.  What should you expect?

Less than One Year Requirements 

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow.  In fact, you must qualify within these statutory parameters to even file your case.  The most important and crucial requirement is the affidavit that must be attached to your petition.  In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.”  Frequently, we see the first requirement being the grounds on which someone files a modification.  Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child.  But, the key is that the allegations must be made in the affidavit.  Many people get hung up on this requirement and many times affidavits fall short on their face.

Unfortunately, there are several horror stories about parties appearing pro se (without legal representation) in divorce, child custody, child support, etc. cases.  In fact, most of the time people make the mistake thinking that they can take care of the case themselves and then realize after the fact that they completely screwed it all up.  They then come to hire an attorney to unscrew those problems, which is most of the time easier said than done.  The best advice that can be given is to hire an attorney right at the beginning to ensure that you are fully protected and correctly advised throughout the entire proceeding.  You do not want to go through an entire divorce and then realize that you did something very bad and then try to appeal it, also on your own.  Because it can almost be guaranteed that if you attempt the second feat, appealing a case, on your own it will most definitely not go in your favor.

This issue was directly addressed in In the Interest of C.M., A Child by the 5th District Court of Appeals in Dallas.  In that case, the mother and father appeared and agreed to the terms of their divorce, including the child custody terms.  The Court, on the record, ensured several times that the mother understood what she was agreeing to and that this was in fact the final hearing and final orders to which the mother replied that she did understand.  Unfortunately, the mother realized what she had agreed to post-prove up and realized that basically stripped her of parental rights and left her with only supervised visits.  Therefore, without representation she thought she would appeal the divorce orders with respect to custody stating that she did not understand and she did not consent to the terms as they were based on “false accusations that were not proven.”  However, the Court of Appeals revealed the record of testimony (which is made at all prove ups) and discovered that she did consent to the terms, several times, and even stated she understood several times.

What most people do not understand when they represent themselves is that they do have a right, when facing a consent judgment or agreed order, to withdraw your consent at any time before the judgment is rendered by the court.  So, the problem in this case was that mother had failed to do that and was trying to withdraw her consent post-divorce which the Court of Appeals held cannot happen.  In fact, the Court stated, “Agreed judgments, once rendered, are contracts between the parties that excuse error and operate to end all controversy between the parties.” Pate v. Pate, 874 S.W.2d 186, 188 (Tex. App.—Houston [14th Dist.] 1994, writ denied.   Therefore, the Court held that they believed the mother’s appeal “was intended to constitute a withdrawal of her consent to the terms agreed upon at the bench trial” which was improper.  In the Interest of C.M., at page 11.

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