Overview of Child Custody Laws in Texas

This article explores the basics of Texas child custody law. It serves as a guide to a child custody lawsuit. Such lawsuits owe their existence to Title 5 of the Texas Family Code. This article is meant to illustrate generally the steps that a child custody lawsuit takes from beginning to end.

Standing to File Suit

The first step in filing a child custody suit is to determine if the person is one who is entitled to file the child custody suit. A child custody suit may only be filed by a person with proper "standing". A person with proper standing is a person who has a legally protected interest in the child. Not every person may file a child custody suit with respect to any child.

A child custody suit is commenced under Title V of the Family Code. TEX.FAM.CODE ANN. § 102.002. Family Code section 102.003 sets out the persons who may file a child custody suit with respect to a child. An original child custody suit may be filed at any time by:

In computing the time necessary for standing under the foregoing (9), (11), and (12), a court may not require that the time be continuous and uninterrupted but must consider the child's principal residence during the relevant time preceding the date of commencement of the suit.

There are specific limitations negating standing that are also set out in the Family Code. If the parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by:

These limitations on filing suit do not apply to a person who has a continuing right to possession of or access to the child under an existing court order; or who has the consent of the child's managing conservator, guardian, or legal custodian to bring the suit.

Service of Citation of the Suit

Once a suit is filed by a person with proper standing, there are certain persons who must be served with the suit and given notice of the proceedings. These persons have a special relationship with the child that is protected by law, therefore are invited to participate in the suit. Section 102.009 of the Family Code provides that the following are entitled to service of citation on the filing of an original child custody suit:

Citation may be served on any other person who has or who may assert an interest in the child.

 

 

Jurisdiction and Venue of Child Custody Lawsuits

The next step in filing a child custody lawsuit in Texas is to determine whether the suit has been filed in the proper state and court. Texas has very specific laws to determine whether a custody case has been filed in the correct court. Disputes arise when one parent does not reside in Texas or one parent does not reside in the same county as the other parent. In such cases, Texas law will determine which is the proper court to hear the dispute.

Texas residents

It is a fairly simple procedure to determine the proper court for the child custody dispute when all parties and the child reside in Texas. In such case, Texas will have jurisdiction to hear the matter. It is only necessary to determine the proper county the suit should proceed in. Section 103.001 of the Family Code provides that an original suit must be filed in the county the child resides in unless:

A child resides in the county where the child's parents reside or the child's parent resides, if only one parent is living, except that:

 

 

 

 

 

 

If venue of a suit is improper in the court in which an original suit is filed and no other court has continuing, exclusive jurisdiction of the suit, on the timely motion of a party other than the petitioner, the court must transfer the proceeding to the county where venue is proper. On a showing that a suit for dissolution of the marriage of the child's parents has been filed in another court, a court in which a suit is pending must transfer the proceedings to the court where the dissolution of the marriage is pending.

Non-Texas residents

Chapter 152 of the Texas Family Code provides for jurisdiction when a party or the child resides outside of Texas. This suit is a bit more complicated than when the parties and child are all Texas residents. For example, jurisdiction of a child custody suit could be fixed in Texas although a party has never resided or been to Texas. Family Code section 152.201 provides that except when a court assumes temporary emergency jurisdiction, a Texas court has jurisdiction to make an initial child custody determination only if:

 

 

Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Once it is determined that jurisdiction is proper in Texas when a party or the child resides out of state, then the proper county for the suit is determined by the general venue provisions set out hereinabove.

Temporary Orders in a Child Custody Suit

Once a suit is properly filed and jurisdiction and venue are settled, a court may make temporary orders in such suit. In many circumstances, it will be necessary for the court to make immediate orders to protect the child and the parties. Chapter 105 of the Family Code specifically authorizes a court to make temporary orders during the pendency of the suit. In a suit, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order:

Custody Proceedings

 

Preliminary Concerns

Pursuant to Family Code section 153.001 it is the public policy of Texas to:

 

A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support. The Family Code further provides that the best interest of the child must always be the primary consideration of a court in determining the issues of conservatorship and possession of and access to the child.

No Discrimination on Status of Marital Status or Sex

The court must consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining which party to appoint as sole managing conservator; whether to appoint a party as joint managing conservator; and the terms and conditions of conservatorship and possession of and access to the child. TEX.FAM.CODE ANN. § 153.003.

 

Commission of Family Violence

A recent amendment to section 153.004 of the Family Code makes the commission of family violence by one spouse against another much more serious with respect to possession of a child. In determining whether to appoint a party as a sole or joint managing conservator, the court must consider evidence of the intentional use of abusive physical force by a party against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. The court must consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.

The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit, unless the court makes specific findings as set out in the Family Code.

Right to Jury Trial

Except as provided hereinbelow, Chapter 105 of the Family Code provides that a party may demand a jury trial in a custody case. In a jury trial a party is entitled to a verdict by the jury on the issues of:

A party is not entitled to a jury verdict on the issues of:

Appointing Conservators

Chapter 153 of the Family Code provides that in a suit, the court may appoint a sole managing conservator or may appoint joint managing conservators. A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency.

Presumption That Parent to be Appointed Managing Conservator

Generally, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. TEX.FAM.CODE ANN. § 153.131. It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption. Typically, parents will be appointed joint managing conservators unless there is conclusive proof that the parents cannot make decisions together that are in the best interest of the child.

If a managing conservator is appointed, the court may appoint one or more possessory conservators. The court must then specify the rights and duties of a person appointed possessory conservator and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child.

Pursuant to Family Code section 153.007, parties are expressly authorized to enter into agreements concerning conservatorship of a child. Accordingly, the parties may enter into a written agreement containing provisions for conservatorship and possession of the child and for modification of the agreement, including variations from the standard possession order so long as the agreement is in the best interest of the child. Terms of the agreement contained in the order or incorporated by reference regarding conservatorship or support of or access to a child in an order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract. If the court finds the agreement is not in the child's best interest, the court may request the parties to submit a revised agreement or the court may render an order for the conservatorship and possession of the child.

Child's Choice of Managing Conservator

If the child is 10 years of age or older, the child may, by writing filed with the court, choose the managing conservator, subject to the approval of the court. TEX.FAM.CODE ANN. § 153.008. The court retains discretion to determine whether to honor the child's choice. Further, in a nonjury trial the court may interview the child in chambers to determine the child's wishes as to conservatorship. TEX.FAM.CODE ANN. § 153.009. Upon the request of a party, the court must interview the child.

Rights and Duties of Conservators

If both parents are appointed as conservators of the child, the court must specify the rights and duties of a parent that are to be exercised by each parent independently; by the joint agreement of the parents; and exclusively by one parent. The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child. Chapter 153 of the Family Code sets out the rights and duties that a parent has at all times and that a parent has while in possession of the child.

Rights of Parent at All Times

 

 

 

 

 

Rights and Duties During Period of Possession

 

Rights and Duties of Parent Appointed Sole Managing Conservator

 

 

 

Agreements for Joint Managing Conservatorship

 

The Family Code sets out the terms and conditions that must be established for an agreement or a court order concerning joint managing conservatorship in sections 153.133 and 153.134 respectively.

If a written agreement of the parents is filed with the court, the court is required to render an order appointing the parents as joint managing conservators only if the agreement:

An agreement may contain an alternative dispute resolution procedure that the parties agree to use before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.

 

If a written agreement of the parents is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:

 

In rendering an order appointing joint managing conservators, the court must:

 

Equal Possession For Joint Conservators Not Required

 

A common misconception is that when a court appoints joint managing conservators, each parent has equal possession of the child. Conservatorship involves the rights and duties of the parent as discussed above. A court may order equal possession for both parents but it is not required to do so. Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators. TEX.FAM.CODE ANN. § 153.135.

Child Support Not Affected

Another common misconception regarding the appointment of joint managing conservators is that the court will not order child support in such a situation. Section 153.138 of the Family Code expressly provides that the appointment of joint managing conservators does not impair or limit the authority of the court to order a joint managing conservator to pay child support to another joint managing conservator.

Court Designation of Primary Physical Residence

One of the hottest issues raging in family law today is that of the appointment of the parent who determines the primary residence of the child. The most typical controversy is whether the conservator who is appointed to make that decision can relocate with the child. Section 153.136 of the Family Code provides that if joint managing conservatorship is ordered, the best interest of the child ordinarily requires the court to designate a primary physical residence for the child.

Possessory Conservator

In the event that a court does not order joint managing conservatorship, the court is given the option to appoint a sole managing conservator and a possessory conservator. A court must appoint a parent as possessory conservator who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child. TEX.FAM.CODE ANN. § 153.191. This is a very strict standard and it is extremely rare that a court would not appoint a parent a possessory conservator.

Unless limited by a court order, a parent appointed as possessory conservator of a child has the rights and duties provided to a parent at all times and during a period of possession of the child and any other right or duty expressly granted to the possessory conservator in the order.

Nonparent Conservator

Subchapter G, Chapter 153 of the Texas Family Code governs the appointment of a nonparent as a conservator of a child. It sets forth the specific rights and duties that attach to a nonparent conservator. It is rare for a nonparent to be appointed conservator of a child.

 

POSSESSION OF THE CHILD

The Family Code sets out the standard possession for a parent who does not have the right to primary possession of the child. The standard possession order has evolved overs the years to provide more liberal possession to the non-primary parent. No longer is there a clear winner and loser in a child custody proceeding. The standard possession order provided by Subchapter F of the Family Code (attached to this article as Appendix "A") constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not the parent entitled to primary possession of the child. TEX.FAM.CODE ANN. § 153.137. The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child. TEX.FAM.CODE ANN. § 153.193.

Standard Possession Guidelines

Subchapter E of Chapter 153 of the Family Code sets out the general guidelines for possession of a child. These guidelines apply to either a possessory conservator or a joint managing conservator who does not have primary possession of a child. The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator. It is the stated policy of Texas to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child. This policy is also a departure from the winner-loser scenario in a custody case.

 

Standard Possession For A Child Less Than 3 Years of Age

The standard possession order is designed to apply to a child three years of age or older. A court must render an order appropriate under the circumstances for possession of a child less than three years of age. Further, a court must render a prospective order to take effect on the child's third birthday, which presumptively will be the standard possession order.

Rebuttable Presumption - Standard Possession

In a suit, there is a rebuttable presumption that the standard possession order in Chapter 153, Subchapter F of the Family Code, provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and is in the best interest of the child.

The court must render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate.

Factors for Court to Consider

In ordering the terms of possession of a child under an order other than a standard possession order, the court is guided by the guidelines established by the standard possession order and may consider:

 

 

Agreements

To promote the amicable settlement of visitation disputes, the Family Code specifically authorizes that parties may enter into agreements concerning such visitation. The court may render an order for periods of possession of a child that vary from the standard possession order based on the agreement of the parties. Such possession may be more or less than what is contained in the standard possession order.

Continuing Jurisdiction of the Court

Chapter 155 of the Family Code governs the continuing jurisdiction of a court once it has heard a child custody matter. A court which rendered a prior child custody order retains continuing, exclusive jurisdiction over all subsequent matters involving the child. The rationale is that the court has special knowledge of the facts, circumstances and background. Although the matter may eventually be transferred to another court under the venue statutes, all matters must begin in the court of continuing, exclusive jurisdiction. Therefore, when the parties reside in Texas and the prior order affecting the parent-child relationship was rendered in Texas, a suit must be filed in the court that rendered the prior order.

The rendition of a final order is prerequisite to acquiring continuing, exclusive jurisdiction. Unless such a final order has been rendered, a subsequent suit must be commenced as an original proceeding. TEX.FAM.CODE ANN. § 155.001(d). See Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993); Trevino v. Ables, 943 S.W.2d 166, 167-68 (Tex.App.-San Antonio 1997, no writ).

Orders That Do Not Create Continuing, Exclusive Jurisdiction

Section 155.001(b) of the Family Code provides that certain final orders do not create continuing, exclusive jurisdiction in a court:

 

Retention of Continuing, Exclusive Jurisdiction

With limited exceptions, discussed hereinbelow, a court with continuing, exclusive jurisdiction retains jurisdiction of the parties with regard to all future child-related suits brought under Title 5, Subtitle C of the Family Code. TEX.FAM.CODE ANN. § 155.002. A court with continuing, exclusive jurisdiction has the power to modify and enforce its prior orders with regard to managing conservatorship, possessory conservatorship, possession of and access to a child and support of a child. TEX.FAM.CODE ANN. § 155.003(a).

Loss of Continuing, Exclusive Jurisdiction

Section 155.004 of the Family Code provides that a court loses jurisdiction to modify a prior order if one of the following apply:

 

The loss of jurisdiction does not affect the power of the Texas court which previously had continuing, exclusive jurisdiction to enforce a prior order for violations occurring prior to its loss of continuing, exclusive jurisdiction. TEX.FAM.CODE ANN. § 155.004(b).

Mandatory Transfer

Upon the timely motion of a party, the court of continuing, exclusive jurisdiction must transfer the suit to another county in Texas if the child the subject of the suit has resided in the other county for six months or longer. TEX.FAM.CODE ANN. § 155.201(b); Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987); Arias v. Spector, 623 S.W.2d 312 (Tex.1981); Brod v. Baker, 591 S.W.2d 457 (Tex. 1979); McManus v. Wilborn, 932 S.W.2d 662 (Tex.App.-Houston [14th Dist.] 1996, mand. motion overruled). The court may deny a motion to transfer venue on a showing that the child has resided in the other county for less than six months at the time the proceeding was commenced. TEX.FAM.CODE ANN. § 155.202(a). Note, however, an action for a writ of habeas corpus for the return of a child is not a suit affecting the parent-child relationship, so the mandatory transfer statute will not apply to such an action. Revey v. Peek, 951 S.W.2d 920, 923 (Tex.App.-Texarkana 1997, no writ.) In computing the amount of time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child's principal residence during the six-month period preceding the commencement of the suit. TEX.FAM.CODE ANN. § 155.203. The computation of the six-month period begins from the date of actual change of residence. Tippy v. Walker, 865 S.W.2d 928 (Tex. 1993).

Discretionary Transfer

Upon the timely motion of a party, the court of continuing, exclusive jurisdiction may transfer a proceeding to a proper court in another county in Texas for the convenience of the parties and witnesses and in the interests of justice. TEX.FAM.CODE ANN. § 155.202(b). Transfer from a district court to a county court at law in the same county may be permissible. See, e.g., Hathorn v. Sivers, 962 S.W.2d 284, 287 (Tex.App.-Houston [14th Dist.] 1998, no writ).

Jurisdiction During Transfer

During the transfer of a suit from a court with continuing, exclusive jurisdiction, the transferring court retains jurisdiction to render temporary orders. The jurisdiction of the transferring court terminates on the docketing of the case in the transferee court. TEX.FAM.CODE ANN. § 155.005(a); Bigham v. Dempster, 901 S.W.2d 424, 429 (Tex. 1995). A case is docketed when the court to which it is transferred has received a certified copy of a transfer order and asserted jurisdiction, or when all files have been transferred, whichever occurs first. Bigham, 901 S.W.2d at 429. After a case has been transferred, the transferor court may not order the return of a case. Seay v. Valderas, 643 S.W.2d 395 (Tex. 1982).

Procedure to Transfer

A motion to transfer is timely if it is made by the party initiating the proceeding at the time the initial pleadings are filed. TEX.FAM.CODE ANN. § 155.204(a). A motion to transfer by a responding party is timely if it is made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit or before the commencement of the hearing, whichever is sooner. Id. If a timely motion to transfer has been filed and no controverting affidavit is filed within the period allowed for its filing, the proceeding must be transferred promptly without a hearing to the proper court. Id.

On or before the first Monday after the 20th day after the date of notice of a motion to transfer is served, a party desiring to contest the motion must file an affidavit controverting the allegation that grounds for the transfer exist. TEX.FAM.CODE ANN. § 155.204(b). If a controverting affidavit is filed, each party is entitled to not less than 10 days notice of hearing on the motion to transfer. TEX.FAM.CODE ANN. § 155.204(c). Only evidence pertaining to the transfer may be taken at the hearing. TEX.FAM.CODE ANN. § 155.204(d). An order transferring or refusing to transfer the proceeding is not subject to interlocutory appeal. TEX.FAM.CODE ANN. § 155.204(e).

Absent an order transferring a suit, the court that originally acquired continuing, exclusive jurisdiction of the proceedings retains jurisdiction. See Alexander v. Russell, 699 S.W.2d 209 (Tex. 1985); Kirby v. Chapman, 917 S.W.2d 902, 907 (Tex.App.-Fort Worth 1996, no writ); Johnson v. Pettigrew, 786 S.W.2d 45, 47-48 (Tex.App.-Dallas 1990, no writ).

Effect of Transfer

A court to which a transfer is made becomes the new court of continuing, exclusive jurisdiction. TEX.FAM.CODE ANN. § 155.206(a); Wilemon v. Wilemon, 930 S.W.2d 290, 292-93 (Tex.App.-Waco 1996, no writ). Orders made by the transferring court remain as enforceable as if they had been originally rendered in the transferee court. TEX.FAM.CODE ANN. § 155.206(b); see Ex parte Barnett, 600 S.W.2d 252 (Tex. 1980). The transferee court must enforce a judgment or order of the transferring court by contempt or by any other means by which the transferring court could have enforced its judgment or order. TEX.FAM.CODE ANN. § 155.206(c). The transferee court has the power to punish disobedience of the transferring court's order, whether occurring before or after the transfer. TEX.FAM.CODE ANN. § 155.206(c). The transferring court has no jurisdiction to enforce its orders, whether a violation occurred before or after the transfer. TEX.FAM.CODE ANN. § 155.206(d).

GROUNDS FOR MODIFICATION OF CONSERVATORSHIP

The Family Code sets out the grounds for modification of conservatorship orders. An order designating a sole managing conservator or joint managing conservators may be modified. The burden of proof is upon the movant to come forth with evidence sufficient to convince the trier of fact that a modification would be justified. See, Jones v. Cable, 626 S.W.2d 734 (Tex. 1981); Ogrydziak v. Ogrydziak, 614 S.W.2d 474, 477 (Tex.App.-El Paso 1981, no writ); Kelly v. Novak, 606 S.W.2d 25, 30 (Tex.App.-Houston [1st Dist.] 1980, no writ). The burden is a preponderance of the evidence. Enriquez v. Krueck, 887 S.W.2d 497, 499 (Tex.App.-San Antonio 1994, no writ). The elements which must be proven vary according to the relief sought.

MODIFICATION OF SOLE MANAGING CONSERVATORSHIP

The Family Code sets out four distinct sets of circumstances which give a court authority to modify an order of sole managing conservatorship. A successful modification of sole managing conservatorship has the effect of removing one sole managing conservator and designating a different sole managing conservator or modifying some or all of the rights and duties of an existing sole managing conservator. For a court to modify, a movant must prove each separate ground of the requirements for modification as set out in the Family Code. See, Enriquez v. Krueck, 887 S.W.2d 497, 499 (Tex.App.-San Antonio 1994, no writ).

Grounds

Section 156.101(a) of the Family Code provides that a court may modify an order that designates a sole managing conservator of a child of any age if:

The threshold inquiry is a determination of a material change. Whitehead v. Whitehead, 709 S.W.2d 388 (Tex.App.-Beaumont 1986, writ dism'd). The change may be in the circumstances of the child, the managing conservator, the possessory conservator, or any party affected an order, but the change must be both substantial and material. Randle v. Randle, 700 S.W.2d 314, 316 (Tex.App.-Houston [1st Dist.] 1985, no writ). The Family Code does not provide a definition with regard to what constitutes a "material and substantial change," but not every changed circumstance warrants modification. In re Chandler, 914 S.W.2d 252, 254 (Tex.App.-Amarillo 1996, no writ). Changes which may warrant modification include, among other things, remarriage by a parent, poisoning the child's mind against a parent, or mistreatment of the child by a parent or step-parent. See, Jeffers v. Wallace, 615 S.W.2d 252, 253-54 (Tex.App.-Dallas 1981, no writ). Further, there are many additional aspects of a child's physical, mental, and moral well-being to be considered. See, R.W.M. v. J.C.M, 684 S.W.2d 746, 748 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.; T.A.B. v. W.L.B., 598 S.W.2d 936 (Tex.App.-El Paso 1980, writ ref'd n.r.e); Dohrmann v. Chandler, 435 S.W.2d 232 (Tex.App.-Corpus Christi 1968, no writ); L.P.W. v. S.O., 669 S.W.2d 182 (Tex.App.-Fort Worth 1984, no writ); Jeffers v. Wallace, 615 S.W.2d 252 (Tex.App.-Dallas 1981, no writ). Repeated changes in a child's environment may also supply grounds for redesignating the child's sole managing conservator. E.g., Eason v. Eason, 860 S.W.2d 187, 190-91 (Tex.App.-Houston [14th Dist.] 1993, no writ); Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex.App.-Houston [1st Dist.] 1988, no writ); Randle v. Randle, 700 S.W.2d 314, 316-17 (Tex.App.-Houston [1st Dist.] 1985, no writ). A course of conduct pursued by a managing conservator which hampers a child's opportunities to favorably associate with the other parent may also suffice to justify a modification. E.g., Guy v. Stubberfield, 666 S.W.2d 176, 179 (Tex.App.-Dallas 1983, no writ); Gunther v. Gunther, 478 S.W.2d 821, 829-30 (Tex.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.); McLeod v. McLeod, 9 S.W.2d 141, 142 (Tex.App.-Eastland 1927, no writ). A party's unjustifiable interference with the parent-child relationship is reprehensible under the law, especially when motivated by the angst and pain inherent in a divorce. In re Chandler, 914 S.W.2d at 254.

If the evidence does not show that modification of an existing order would be a positive improvement for a child, a court must deny the motion. Rayburn v. Rayburn, 979 S.W.2d 858, 862 (Tex.App.-Beaumont 1998, no writ); In re Ferguson, 927 S.W.2d 766, 769 (Tex.App.-Texarkana 1996, no writ).

Child Age 10 or Older

Section 156.101(b) of the Family Code further provides that a court may modify an order that designates a sole managing conservator of a child 10 years of age or older if:

 

A child's choice of a conservator is subject to the court's approval. See, In re Moss, 887 S.W.2d 186 (Tex.App.-Texarkana 1994, no writ); Cole v. Cole, 880 S.W.2d 477 (Tex.App.-Fort Worth 1994, no writ); Boriak v. Boriak, 541 S.W.2d 237 (Tex.App.-Corpus Christi 1976, writ dism'd w.o.j.).

Within One Year of Prior Order

If a suit seeking to modify sole managing conservatorship is filed not later than one year after the date of rendition of a prior order, the person filing the suit must execute and attach an affidavit as provided by Section 156.102(b) of the Family Code. TEX.FAM.CODE ANN. § 156.102(a). The affidavit must contain, along with supporting facts, at least one of the following allegations:

 

 

An affiant must state concrete facts that clearly demonstrate that extraordinary relief is appropriate. Burkhart v. Burkhart, 960 S.W.2d 321, 324 (Tex.App.-Houston [1st Dist.] 1997, writ denied) A court must deny the relief sought and refuse to schedule a hearing for modification unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation are stated in the affidavit. TEX.FAM.CODE ANN. § 156.102(c); Burkhart, 960 S.W.2d at 323; Graves v. Graves, 916 S.W.2d 65, 69 (Tex.App.-Houston [1st Dist.] 1996, no writ). If the court determines that the facts stated are adequate to support an allegation, the court must set a time and place for the hearing. TEX.FAM.CODE ANN. § 156.102(c).

Relitigation of custodial issues within a short period of time after rendition of the prior custody order is discouraged by the imposition of a heightened standard of verified pleading. Burkhart, 960 S.W.2d at 323. Further, public policy disfavors disruption of custodial arrangements within the first year, except in cases in which the child's physical health or emotional development is imperiled. Burkhart, 960 S.W.2d at 323; Mobely v. Mobely, 684 S.W.2d 226, 229 (Tex.App.-Fort Worth 1985, writ dism'd).

Voluntary Relinquishment

A court may modify an order that designates a sole managing conservator if the sole managing conservator has voluntarily relinquished actual care, control, and possession of the child for a period of not less than six months and the modification is in the best interest of the child. TEX.FAM.CODE ANN. § 156.103; See e.g., Leighton v. Court, 773 S.W.2d 63 (Tex.App.-Houston [14th Dist.] 1989, no writ); Bolden v. Clapp, 751 S.W.2d 674, 677 (Tex.App.-Tyler 1988, no writ).

MODIFICATION OF SOLE MANAGING CONSERVATORSHIP TO JOINT MANAGING CONSERVATORSHIP

 

The Family Code also permits modification from sole managing conservatorship to joint managing conservatorship.

General

Section 156.104(a) of the Family Code provides that a court may modify an order that designates a sole managing conservator if a parent of the child requests appointment as a joint managing conservator and the court finds that:

The burden to modify from sole managing conservatorship to joint managing conservatorship is more difficult than simply replacing the one parent sole managing conservator with the other parent, because the requirement of a showing that the retention of the existing sole managing conservatorship would be detrimental to the welfare of the child. Id. An order of joint conservatorship, in and of itself, does not constitute grounds for modifying a support order. TEX.FAM.CODE ANN. § 156.104(b).

Statutory Change of Circumstances

In 1987, the Texas Legislature vested Texas courts with the power to order joint managing conservatorship if the court determined that would be in the child's best interest. Prior to that date, an order appointing joint managing conservators required the agreement of the parties. In conjunction with this amendment, the legislature adopted a statute that the newly-vested authority of the trial court to order joint managing conservatorship without the parties' agreement is in and of itself a material and substantial change of circumstance sufficient to justify modification of an existing sole managing conservatorship to joint managing conservatorship, if the order to be modified was rendered on or after September 1, 1987, but not if the order was rendered before September 1, 1987. TEX.FAM.CODE ANN. § 156.105.

MODIFICATION OF TERMS AND CONDITIONS OF JOINT MANAGING CONSERVATORSHIP

 

The Family Code provides for modification of the terms and conditions of a joint managing conservatorship. Absent a written agreement approved by a court, Family Code section 156.202 provides that a court may modify the terms and conditions of a joint conservatorship order if:

 

The trial court has discretion to modify a joint conservatorship, but only when both criteria are met. Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex.App.-Fort Worth 1995, no writ). If there is clear and unrefuted evidence of a material and substantial change in circumstances, and all the other grounds for modification have been met, it is error for a court to deny a motion to modify. See, In re A.D.H., 979 S.W.2d 445, 451 (Tex.App.-Beaumont 1998, no writ).

MODIFICATION OF JOINT MANAGING CONSERVATORSHIP TO SOLE MANAGING CONSERVATORSHIP

 

Family Code section 156.203 provides that a court may replace a joint managing conservatorship with a sole managing conservatorship if:

In In re Moss, 887 S.W.2d 186, 188 (Tex.App.-Texarkana 1994, no writ), the court affirmed a modification from joint managing to sole managing conservatorship where the evidence showed that the child and father desired the change and that the change was in the best interest of the child.

GROUNDS FOR MODIFICATION OF POSSESSION OF CHILD

The Family Code sets out the grounds for modification of possession and access orders. Family Code section 156.301 states that a court may modify an order that sets the terms and conditions for possession of or access to a child or that prescribes the relative rights, privileges, duties, and powers of conservators if:

 

Only one of the foregoing grounds need be proven to justify a modification of a prior order. See, Boney v. Boney, 458 S.W.2d 907 (Tex. 1970); A.K.P. v. J.A.P., 684 S.W.2d 762, 765 (Tex.App.-Corpus Christi 1984, no writ). However, failure to plead and prove a ground for recovery may result in a reversal of a modification order. See, Howard v. Pullicino, 519 S.W.2d 254 (Tex.App.-Austin 1975, no writ). The area of custody and visitation is one in which the trial court is recognized as enjoying broad discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Wright v. Wright, 867 S.W.2d 807, 815 (Tex.App.-El Paso 1993, writ denied); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.-Corpus Christi 1990, writ denied). A parent is usually entitled to have periodic visitation privileges with his or her child, and that privilege should not be denied except in an extreme case of parental unfitness. In re Cassey D., 783 S.W.2d 592, 596-97 (Tex.App.-Houston [1st Dist.] 1990, no writ); Anderson v. Martin, 257 S.W.2d 347, 354 (Tex.App.-Amarillo 1953, writ ref'd n.r.e.). A parent's possession should not be limited in excess of that necessary to protect a child's best interest. See, Roosth v. Roosth, 889 S.W.2d 445 (Tex.App.-Houston [14th Dist.] 1994, no writ).

An order modifying only possession or access to a child does not amount to a change of custody and the standards for a change of custody will not apply in such a modification. See, In re C.E.B., 604 S.W.2d 436, 441 (Tex.App.-Amarillo 1980, no writ). However, for a possession or access order to be modified, the prerequisite grounds must be met. Id. The prerequisite proof of change of circumstances is much more relaxed in visitation cases. A.K.P. v. J.A.P., 684 S.W.2d 762, 764 (Tex.App.-Corpus Christi 1984, no writ).

 

 

Parental Alienation and Lifestyle

Evidence that restrictive visitation provisions thwarted the parent-child relationship was deemed a substantial and material change of conditions sufficient to warrant modification of a prior order. Hanna v. Turner, 556 S.W.2d 866, 869 (Tex.App.-Corpus Christi 1977, no writ). A conservator's lifestyle is one of many considerations in a modification action. See, In re C.E.B., 604 S.W.2d 436, 443 (Tex.App.-Amarillo 1980, no writ). However, the primary concern is the best interest of the child. Id. A showing that a conservator has placed the child in an unstable environment may provide grounds for the modification of a possession order. See, In re A.D.H., 979 S.W.2d 445 (Tex.App.-Beaumont 1998, no writ).

Standard Possession

There is a rebuttable presumption that the standard possession order set out in the Texas Family Code constitutes reasonable minimum possession for the noncustodial parent of a child, and that such possession is in the best interest of the child. TEX.FAM.CODE ANN. § 153.252; Thompson v. Thompson, 827 S.W.2d 563, 570 (Tex.App.-Corpus Christi 1992, writ denied). In Thompson the court held that it was error for the trial court to order that a conservator only have possession of the child during the summer months because that limited possession was not in the best interest of the child. Id.

See G.K. v. K.A., 936 S.W.2d 70 (Tex.App.-Austin 1996, writ denied) and Voros v. Turnage, 856 S.W.2d 759 (Tex.App.-Houston [1st Dist.] 1993, no writ) for an analysis of the standard for deviation from the standard possession order.

A court may consider the guidelines for possession of and access to a child in Chapter 153 of the Family Code to determine if there has been a material and substantial change in circumstances or if the order has become unworkable or inappropriate in determining whether a modification of the existing order for possession of or access to a child by a parent is in the best interest of the child. TEX.FAM.CODE ANN. § 156.302(a). A court may modify an order for possession of and access to a child that does not substantially conform to the standard possession order, if the modification is in the best interest of the child. TEX.FAM.CODE ANN. § 156.302(b). Further, a court may tailor a modification order for parents who celebrate different religious holidays because the standard possession order does not provide for such possession. See, Jacobs v. Dobrei, 991 S.W.2d 462, 464 (Tex.App.-Dallas 1999, no writ).

Prior Ambiguous Order

If the court finds that the terms or conditions for possession of a child are ambiguous, the court may determine that the order is unworkable and order a modification. See, A.K.P. v. J.A.P., 684 S.W.2d 762, 764 (Tex.App.-Corpus Christi 1984, no writ).

Relocation of One Conservator

In Warchol v. Warchol, 853 S.W.2d 165 (Tex.App.-Beaumont 1993, no writ), the court upheld a possession modification limiting the number and duration of trips a child had to make for long distance visitation, hold that excessive long and numerous trips were not conducive to a stable routine for the child. In Fair v. Davis, 787 S.W.2d 422 (Tex.App.-Dallas 1990, no writ). the court upheld a modification eliminating mid-week visitation after the parents relocated further away from one another.

If the relocation results in increased expenses associated with the exercise of possession of a child, a court may make appropriate orders allocating those increased costs on a fair and equitable basis, taking into account the cause of the increased costs and the best interest of the child. TEX.FAM.CODE ANN. § 156.303(a). The payment of increased costs by the relocating party is rebuttably presumed to be in the best interest of the child. TEX.FAM.CODE ANN. § 156.303(b). A court may render an order for payment of travel expenses without regard to whether another change in the terms and conditions of possession of or access to the child is made. TEX.FAM.CODE ANN. § 156.303(c).

Modification of Order on Conviction for Child Abuse

The conviction or an order deferring adjudication of an individual who is a possessory conservator or a sole or joint managing conservator for an offense involving the abuse of a child under Section 21.11, 22.011, or 22.021, Penal Code, is a material and substantial change of circumstances sufficient to justify a modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship for or access to a child. TEX.FAM.CODE ANN. § 156.304(a). A person commits an offense if the person files a motion to modify falsely and knowingly alleging a child abuse conviction or deferred adjudication for an offense under Section 21.11, 22.011, or 22.021, Penal Code. TEX.FAM.CODE ANN. § 156.304(b). Such an offense is a Class B misdemeanor. Id.

APPENDIX A - STANDARD POSSESSION ORDER

 

Sec. 153.311. Mutual Agreement or Specified Terms for Possession.

 

The court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard order.

 

Sec. 153.312. Parents Who Reside 100 Miles or Less Apart.

 

(a) If the possessory conservator resides 100 miles or less from the primary residence of the child, the possessory conservator shall have the right to possession of the child as follows: (1) on weekends beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday or, at the possessory conservator's election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, beginning at the time the child's school is regularly dismissed and ending at 6 p.m. on the following Sunday; and (2) on Wednesdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., or, at the possessory conservator's election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, beginning at the time the child's school is regularly dismissed and ending at the time the child's school resumes, unless the court finds that visitation under this subdivision is not in the best interest of the child.

 

(b) The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Wednesday periods of possession. The possessory conservator and the managing conservator shall have rights of possession of the child as follows: (1) the possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years; (2) if a possessory conservator: (A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or (B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31; (3) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and (4) if the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days' written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator's period or periods of extended summer possession or with Father's Day if the possessory conservator is the father of the child.

 

Sec. 153.313. Parents Who Reside Over 100 Miles Apart.

 

If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows: (1) either regular weekend possession beginning on the first, third, and fifth Friday as provided under the terms applicable to parents who reside 100 miles or less apart or not more than one weekend per month of the possessory conservator's choice beginning at 6 p.m. on the day school recesses for the weekend and ending at 6 p.m. on the day before school resumes after the weekend, provided that the possessory conservator gives the managing conservator 14 days' written or telephonic notice preceding a designated weekend, and provided that the possessory conservator elects an option for this alternative period of possession by written notice given to the managing conservator within 90 days after the parties begin to reside more than 100 miles apart, as applicable; (2) each year beginning on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation; (3) if the possessory conservator: (A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or (B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27; (4) if the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservator may have possession of the child under the terms of this subdivision on two non consecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and (5) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator's period or periods of extended summer possession or with Father's Day if the possessory conservator is the father of the child..

 

153.314. Holiday Possession Unaffected by Distance Parents Reside Apart.

 

The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Wednesday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows: (1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 26, and the managing conservator shall have possession for the same period in odd-numbered years; (2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 26 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years; (3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years; (4) the parent not otherwise entitled under this standard order to present possession of a child on the child's birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; (5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father's Day and ending on Father's Day at 6 p.m., provided that, if he is not otherwise entitled under this standard order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and (6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother's Day and ending on Mother's Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

 

Sec. 153.315. Weekend Possession Extended by Holiday.

 

(a) If a weekend period of possession of the possessory conservator coincides with a school holiday during the regular school term or with a federal, state, or local holiday during the summer months in which school is not in session, the weekend possession shall end at 6 p.m. on a Monday holiday or school holiday or shall begin at 6 p.m. Thursday for a Friday holiday or school holiday, as applicable.

 

(b) At the possessory conservator's election, made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, periods of possession extended by a holiday may begin at the time the child's school is regularly dismissed.

 

Sec. 153.316. General Terms and Conditions.

 

The court shall order the following general terms and conditions of possession of a child to apply without regard to the distance between the residence of a parent and the child: (1) the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of the possessory conservator's possession at the residence of the managing conservator; (2) if the possessory conservator elects to begin a period of possession at the time the child's school is regularly dismissed, the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of possession at the school in which the child is enrolled; (3) the possessory conservator shall be ordered to do one of the following: (A) the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator; or (B) the possessory conservator shall return the child to the residence of the managing conservator at the end of each period of possession, except that the order shall provide that the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator if: (i) at the time the original order or a modification of an order establishing terms and conditions of possession or access the possessory conservator and the managing conservator lived in the same county, the possessory conservator's county of residence remains the same after the rendition of the order, and the managing conservator's county of residence changes, effective on the date of the change of residence by the managing conservator; or (ii) the possessory conservator and managing conservator lived in the same residence at any time during a six-month period preceding the date on which a suit for dissolution of the marriage was filed and the possessory conservator's county of residence remains the same and the managing conservator's county of residence changes after they no longer live in the same residence, effective on the date the order is rendered; (4) if the possessory conservator elects to end a period of possession at the time the child's school resumes, the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the school in which the child is enrolled; (5) each conservator shall return with the child the personal effects that the child brought at the beginning of the period of possession; (6) either parent may designate a competent adult to pick up and return the child, as applicable; a parent or a designated competent adult shall be present when the child is picked up or returned; (7) a parent shall give notice to the person in possession of the child on each occasion that the parent will be unable to exercise that parent's right of possession for a specified period; (8) written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due; and (9) if a conservator's time of possession of a child ends at the time school resumes and for any reason the child is not or will not be returned to school, the conservator in possession of the child shall immediately notify the school and the other conservator that the child will not be or has not been returned to school.

 

Sec. 153.317. Alternative Possession Times.

 

If a child is enrolled in school and the possessory conservator elects before or at the time of the rendition of the original or modification order, the standard order must expressly provide that the possessory conservator's period of possession shall begin or end, or both, at a different time expressly set in the standard order under and within the range of alternative times provided by one or both of the following subdivisions: (1) instead of a period of possession by a possessory conservator beginning at 6 p.m. on the day school recesses, the period of possession may be set in the standard possession order to begin at the time the child's school is regularly dismissed or at any time between the time the child's school is regularly dismissed and 6 p.m.; and (2) except for Wednesday evening possession, instead of a period of possession by a possessory conservator ending at 6 p.m. on the day before school resumes, the period of possession may be set in the standard order to end at the time school resumes.