Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Anderson Law Firm : TX Child Support & Custody Issues

In my previous two posts I defined the terms commonly used in custody determinations and the factors courts consider in determining custody.  Now that we have these housekeeping issues taken care of, I'll discuss the presumptions that apply in conservatorship determinations and the hurdles parents have to overcome in getting "sole custody."

 It is presumed that appointment of both parents as joint managing conservators is in the best interest of the child.  The rationale behind this is that the appointment of both parents as the child's conservator provides the child with the best care and opportunities, as well as the best environment for the child's mental, moral and emotional development.  Texas courts should also, but are not required to do so, consider Texas public policy which aims to: (1) ensure that children have frequent and continuing contact with both parents; (2) provide children with a safe and stable environment; and (3) encourage parents to share in the rights and obligations in raising their children after their divorce. 

If a parent seeks appointment as the sole managing conservator against the other parent then that parent must overcome the presumption that appointment of joint managing conservators is not in the best interests of the child.  Note that if there are allegations of domestic violence, the parent seeking appointment as sole managing conservator is not required to rebut the joint managing conservator presumption. 

In order to rebut the joint managing conservator presumption, the parent seeking appointment as sole managing conservator is required to present evidence that appointing joint managing conservators is not in the child's best interest.  This is done by looking to the Holley factors I discussed in part two of this series of posts.  If the parent is successful in overcoming the joint managing conservator presumption, the other parent must be appointed as a possessory conservator unless the court finds that doing so would not be in the child's best interest and allowing that parent to have possession or access to the child would endanger the child's physical or emotional welfare. 

If, however, there are allegations of domestic violence, then it is somewhat easier to rebut the joint managing conservator presumption.  The Texas Family Code prohibits the appointment of parents as joint managing conservators if credible evidence of domestic violence is presented.  Credible evidence of domestic violence is evidence that a parent has a history of past or present child neglect or a history of abuse that was directed to the other parent, a spouse or the child. 

Because the burden of overcoming the joint managing conservator presumption is so great, the majority of the time the court appoints parents as joint managing conservators.  When appointing joint managing conservators, the court must appoint one parent as the "primary" joint managing conservator.  The primary joint managing conservator is the parent that is granted the exclusive right to designate the child's primary residence.  In determining the who to appoint as the primary joint managing conservator, the best interests of the child control. 

In sum, it is difficult to overcome the joint managing conservator presumption and to obtain "sole custody" of a child.  Of course, the issues presented in this series of posts pertain only to the determination of conservatorship.  Once conservatorship is determined, the court must then allocate periods of possession and access to the children.  Thus, even if a parent is designated as the sole managing conservator, it is likely that the other parent will be granted as a possessory conservator and have some periods of possession and access to the child. 

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In my previous post I talked about the various terms used in Texas courts regarding child custody.  I also stated that the best interest of the child is the first priority for any Texas court presented in a conservatorship and/or possession determination.  In this post, I'll continue our discussion by looking at the factors courts consider in determining what is in the best interest of a child (i.e., the Holly Factors). 

The first main category a court will assess is the parent's ability to care for the child.  Generally speaking the following seven factors are frequently considered:

• Which parent will best provide for the child's physical, psychological, and emotional needs now and in the future?
• Does either parent pose any physical or emotional danger to the child now or in the future?
• Which parent will present the most stability for the child?
• What are the parents' plans for the child?
• What level of cooperation exists between the parents? 
• What are the parenting skills of each parent?
• Which parent was the child's primary caregiver before the divorce was filed?

The second main category to be assessed is maintaining family relationships.  Generally, the following six factors are considered:

• The child's desires (if the child is 12 years of age or greater)
• The geographic proximity of the parents and other family members
• If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings
• The extent to which each parent can encourage and accept a positive relationship between the child and the other parent
• Whether any parent ever knowingly made a false report of child abuse
• Whether there is a need for measures to protect the child from being abducted to a foreign country. 

The last main category deals with parental fitness.  In this category there are mandatory factors and optional factors the court considers.  The three mandatory factors are: 

• Whether there is any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent against the other, a spouse, or a child
• Whether there is any evidence of the intentional use of of abusive physical force by a parent against the other or any person under 18 years of age that is committed while the suit is pending or in the two years before the suit was filed
• Whether there has been a commission of family violence

The following are optional factors for the court to consider as they relate to the parties to the suit:

• Each parent's present fitness to care for the child (including recent past conduct that is a reasonable predictor of current fitness)
• Whether either parent has a drug or alcohol problem
• Whether either parent's sexual conduct renders that parent unfit to act as a parent (for example, if a parent has pornography that is accessible to the child)

It is also a comfort to a lot of our clients that the court can NOT consider the following factors: 

• Martial status (although a parent's marital status cannot be used by itself to determine who should be appointed as the child's conservator, court's can consider a parent's marital stability)
• Gender
• Race
• Religion (except if the religion requires the parent to engage in illegal, immoral or harmful activities).

Although this may seem like a short list of factors, there are several nuances to each factor listed.  Now that we have the basic terms down and an understanding of what the Holly Factors are, in my next post I'll discuss the presumptions that apply is conservatorship determination and how they impact a party's desire for "sole custody." 

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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.

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Shout out to winning lawyer Kirk Pittard, a Dallas lawyer who handles civil appeals!  He tells me that this appeal was a companion to a civil lawsuit over the same matter.  Looks like a good result to me. 

-- MMO

In a recent decision by the Dallas Court of Appeals, the rights of a biological father were vindicated.  In the case of In the Matter of B.B.M, a child's biological father appealed the trial court's determination appointing the child's non-parents as joint managing conservators.  In the Matter of B.B.M., -- S.W.3d --, No. 05-08-00501-CV, 2009 WL 1801035 (Tex. App. - Dallas, June 24, 2009). 

The facts of B.B.M. are very interesting.  Biological father and mother live together as boyfriend and girlfriend.  Mother and biological father break up and mother moves out of the couple's home.  After a few months, mother moves in with her new boyfriend.  Shortly after mother moves in with her new boyfriend, she discovers she is pregnant.  New boyfriend and mother believe that new boyfriend is the father (turns out he wasn't) and decide to place the child up for adoption. 

Biological father later learns of mother's pregnancy and becomes concerned the child might be his.  Mother continues to work with an adoption agency to place the child with adoptive parents in Idaho.  Biological father learns that mother is about to give the child up for adoption, contacts the adoption agency, informs it of his concerns that he is the child's father and that he objects to the pending adoption.  Adoption agency proceeded with the adoption, the and Idaho parents took the baby home from the hospital after executing an acknowledgment they understood there was a risk the biological father (still disputed at this point) would not relinquish his rights to the child.

Approximately three weeks after the child's birth, biological father filed notice of his intent to claim paternity of the child.  In response, the adoption agency filed suit requesting the termination of biological father and mother's parental rights.  Biological father counter sued to establish paternity, to which the court ordered a paternity test which confirmed mother's current boyfriend was NOT the father. 

After a trial by jury, the court awarded managing conservatorship of the child to the adoptive parents.  Biological father then appealed this determination. 

The court noted the strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator is deeply embedded in Texas law.  (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)).  To overcome this presumption, a nonparent must prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child's physical health or emotional development.  See Tex. Fam. Code Sect. 153.131(a).  The evidence required to do so must support the logical inference that some specific, identifiable behavior or conduct of the parent will probably harm the child.  Further, mere speculation that a nonparent would be a "better" custodian of the child is wholly inadequate to meet this burden.  

In reviewing the evidence presented at trial, the court noted the adoptive parents primarily related to the potential impairment of the child's emotional development resulting from his removal from the adoptive parent's home.  The court also noted that the proper focus of inquiry is solely whether the placement of the child with the natural parent would significantly impair the child's physical or emotional health. 

In reversing the trial court, the court held there was no evidence presented that the child suffered from any ill effects from time spent with his biological father and that when a nonparent and a parent are both seeking managing conservatorship, close calls go to the parent.

The rights of a parent have been characterized as essential and far more precious than any property right.  As a Dallas Divorce Lawyer, I am ready, willing and able to help protect these precious rights.

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