Originally published by McClure Law Group.
Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved. In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child. Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.
The child’s father is deceased. In 2016, the father’s brother filed suit to be named as the child’s primary conservator. The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order. The order gave primary possession to the uncle and periodic possession to the mother. The uncle had the right to request the mother undergo drug testing once a month. She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice. The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive. If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.
The mother moved to enforce the order a month after it was entered. She alleged the uncle did not make the child available to her during her time. She sought criminal and civil contempt, additional periods of possession, and attorney’s fees. She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.
The trial court found the terms of the order were not sufficiently specific to be enforced by contempt. The court added language requiring the uncle provide notice of the drug test “at a reasonable time” and give the mother 24 hours notice to comply. The court found the uncle in violation of the original order by failing to give the child to the mother on two occasions. It also ordered him to pay $1,500 in attorney’s fees to the mother’s attorney.
The uncle moved for review of the attorney’s fees. The judge confirmed the award but also specified it would be enforceable as both a debt and as child support. The uncle appealed, arguing the court had not merely clarified the order but had made substantive changes to the terms.
A court may clarify a previous custody order, but may not generally modify a previous order unless certain conditions are met and the modification is in the child’s best interest. A clarification cannot make substantive changes to the order. Although a clarification can correct an error in the original judgment, it can only correct a clerical error, not a judicial error. The clarification, therefore, cannot correct an error resulting from judicial reasoning.
The appeals court found the original order’s “possession and access terms were specific, non-ambiguous, and could be enforced by contempt.” The order allowed the uncle to request a drug test once a month. It provided the method of the request and limited the times when he could request it. The appeals court found the trial court had used judicial reasoning to add the requirement that the uncle send the request within reasonable time that gives the mother 24 hours notice. The appeals court found the original text was unambiguous so the trial court did not have the authority to clarify.
The original order provided that a level of marijuana higher than 3.66 picograms would be deemed positive, but the modification added language limiting this provision to ingested marijuana. The appeals court found this was a substantive change. The original order was unambiguous.
The appeals court struck the language purporting to clarify the previous order.
The uncle also argued there was no evidence that the enforcement of the order was necessary for the child’s physical or emotional safety or welfare, which would be required to enforce the attorneys fee award as child support. The trial court did not find the uncle in contempt or enter a finding that enforcement of the original order was necessary to ensure the child’s health or welfare. There was no evidence supporting characterizing the fee award as child support so the appeals court struck that portion of the order.
This case serves as a reminder that a Texas trial court’s ability to change a custody order is limited. The court may not clarify an order by making a substantive change to its provisions, even if those provisions seem unfair. An experienced Texas custody attorney can help you seek or oppose a clarification or modification of a custody order. Call McClure Law Group at 214-692-8200 to schedule a consultation.