In a recent opinion by the Dallas Court of Appeals, the Court held the trial judge did not err when he did not apply a domestic violence presumption in assessing child custody and did not record an interview with a child in the office outside the court room. In the Interest of S.E.K. & H.A.K., No. 05-08-00858-CV, --- S.W.3d --- (Tex. App. - Dallas, Aug. 28, 2009).
In S.E.K. mother and father were divorced and were initially appointed as joint managing conservators for the children. Several years after his divorce, father filed a law suit with the aid of his lawyer seeking to modify the custody determinations provided in his divorce decree. In response, mother filed a counter-suit also seeking to modify the custody schedule. Mother complained to the trial judge that father shouldn't have primary custody of the children because of prior allegations that he sexually abused the kids. The trial judge (from Dallas) was presented with testimony from both sides and their expert witnesses and ordered: (1) father has sole custody of one child; (2) mother has sole custody of the other child; and (3) visitation of the children has to be supervised. Mother was unhappy with the trial judge's ruling and appealed.
On appeal, mother argued the trial judge committed error by not noting on the record the allegations that father sexually abused his children. Additionally, mother complained that the trial judge erred when he did not make a record of his interview with the couple's child in his office just outside the court room. Both of mother's complaints arose under Chapter 153 of the Texas Family Code (which deals with the initial determination of custody and visitation).
The appellate court noted that this case was not an initial determination of custody, but rather it was a modification case. Because the case sought to modify a prior custody determination, the Court said that Chapter 153 of the Family Code did not apply but rather Chapter 156 controlled. The appellate court went on to state that the Texas Legislature placed different standards in Chapters 153 and 156 and because of this, the law mother relied on did not apply. In a modification suit, the main issues are whether there have been material and substantial changes which warrant a modification in custody and whether the proposed changes would be in the best interest of the child. The main issues to be determined in an initial custody determination are different than this and are reflected by the language of the laws found in Chapter 153.