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| | Considering Policies Affecting Modification of Conservatorship |
Child's Best Interest as Primary Consideration
The child's best interest is always the primary consideration of the court in determining questions of conservatorship and possession of and access to a child.
Policies Favoring Frequent Contact, Stability, and Cooperation
It is Texas' public policy to:
- Assure that children will have frequent and continuing contact with parents who have shown the ability to act in the children's best interest.
- Provide a safe, stable, and nonviolent environment for the child.
- Encourage parents to share in the rights and duties of raising their child after the parents have separated and dissolved their marriage.
Stability favored.
Although a disruption of the child's life at the time of the divorce is unavoidable, the disruption can be abated and the situation improved after the divorce. Strong public policy favors a high degree of stability in the child's present environment and disfavors post-divorce changes in the child's lifestyle. There is also a strong public policy against relitigating child-related dispute. The policy favoring stability influences the standard or prerequisite for modification. That is, the standard in a particular suit depends on the degree to which the requested modification would disrupt the stability of the child's present environment and lifestyle. For example, the degree of proof necessary to justify a modification of visitation is less onerous than the proof required to modify custody.
Right to Possession Independent From Duty of Support
A parent's right to possession of or access to a child is independent of the parent's duty to support the child. A court may not render an order that conditions a conservator's right to possession of or access to a child on the payment of child suppor. Similarly, a court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child.
Preference for Parent Over Nonparent Not Controlling
In an original conservatorship proceeding in which a parent and a nonparent are vying for appointment as the child's managing conservator, there is a rebuttable presumption that the parent is to be appointed unless the court finds that appointment of the parent would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development. In an original custody proceeding, the court must heavily favor the parent by reason of this rebuttable presumption. However, in a modification proceeding, this parental presumption is a factor to consider but does not control. If a nonparent rebuts the presumption in the original custody determination, the parent in a subsequent modification proceeding must meet the requirements for a change of custody set out in the Family Code.
Gender Discrimination Prohibited
The court must consider the parties' qualifications without regard to their marital status or to the gender 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.
- The terms and conditions of conservatorship and possession of and access to the child.
Split or Divided Custody
A split or divided custody arrangement occurs when one parent is designated the sole managing conservator of one or more of several siblings and the other parent is appointed the sole managing conservator of the others.
Clear and compelling reasons.
Some courts have held that a petitioner seeking a modification that would create divided custody must show clear and compelling reasons justifying the divided custody; otherwise, children should be raised together with their siblings. On the other hand, one court of appeals has rejected the requirement of a showing of clear and compelling reasons for split custody of children on the ground that the Family Code does not impose that requirement but provides instead that the children's best interest must always be the primary consideration. That court stated that split custody is simply one of the factors to consider in determining the children's best interest.
Requirement applies only to siblings.
Regardless of whether the requirement for clear and compelling reasons is to be applied in all cases, it is clear that the requirement does not apply to the separation of a child of the marriage from children born to one of the parents during a previous marriage.
Establishing clear and compelling reasons.
Clear and compelling reasons for divided custody were demonstrated in the following circumstances:
- The parents' behavior made appointment of nonparent managing conservators in the children's best interest, even though it resulted in splitting them from their brother who remained with parents.
- Although the father had snatched the child, the child was so upset at having to return to the mother's custody that a custody modification was justified.
- The custodian's poisoning of the oldest child's mind against the noncustodian, and their combined efforts similarly to poison the youngest son's mind, justified modification of custody of the youngest son to the noncustodian.
Jury questions.
When a managing conservatorship modification suit involving more than one child is tried to a jury, a jury question should be separately submitted for each child. The jury findings should be based on the preponderance of the evidence standard. The additional burden regarding dividing siblings only for clear and compelling reasons may be explained to the jury by way of definitions and special instructions.
History of Domestic Violence
When there is a recent history of family violence, the trial court's ability to allow the abusive parent to have access to the child, either as managing or possessory conservator, is limited by statute. If a parent has a history or pattern of committing family violence during the two years before the suit was filed or while the suit was pending, the court may not allow the parent to have access to the child unless:
- The court finds that awarding the parent access to the child would not endanger the child's physical health or emotional welfare and would be in the child's best interest; and
- The court renders a possession order designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent. The order may include a requirement that (1) periods of access be supervised; (2) the exchange of possession occur in a protective setting; (3) the parent abstain from the consumption of alcohol or controlled substances for 12 hours before and during the period of access; or (4) the parent attend and complete a battering intervention and prevention program or other course of treatment.
Effect of family violence on appointment of managing conservator.
On the issue of sole or joint conservatorship, the court must consider evidence of the intentional use of abusive physical force by a party against the party's spouse, the child's parent, 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.
Effect of family violence on appointment of joint managing conservators.
The court may not appoint joint managing conservators if credible evidence is presented showing 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 Family Code does not define the phrase ``history or pattern.'' However, one court of appeals has stated that to show a pattern, there must be some relationship among the separate instances of neglect or abuse that tends to connect them and show a threat of continuing violations.
Effect of family violence on appointment of possessory conservator.
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.
Evidence of family violence admissible regardless of conviction.
Evidence of family violence is admissible regardless of whether there has been a conviction.
Penalty for Frivolous Suit
If the court finds that a suit for modification was filed frivolously or is designed to harass a party, the court must tax attorney's fees as costs against the offending party.
Penalty for False Allegation of Child Abuse or Neglect
If a party to a pending SAPCR makes a report alleging child abuse by another party that the reporting party knows lacks a factual foundation, the court is required to deem the report to be a knowingly false report. If the court makes this finding, the court is required to impose a civil penalty of up to $500. In addition, if the court finds that a party made a false allegation of child abuse or neglect, the court may impose any civil sanction permitted by law, including attorney's fees, costs of experts, and any other costs.
Effect on terms of conservatorship.
Evidence of a false report of child abuse is admissible in a suit between the involved parties regarding the terms of conservatorship of a child. A false report of child abuse or neglect made before or during a suit affecting the parent-child relationship may be grounds for the court to modify the parent-child relationship to restrict further access to the child by the accuser.
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