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Texas Court Orders Child’s Name Change to Include His Father’s Surname

Texas Court Orders Child’s Name Change to Include His Father’s Surname

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Originally published by Robert Epstein.

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Under Texas family law, a court may order a child’s name be changed if doing so is in the child’s best interest.  Neither parent is specifically granted the right to name the child under Texas law, but generally a child’s name will not be changed unless the party seeking the change shows a good reason for it.  In a recent case, a mother challenged a court’s order to change the child’s name to include the father’s last name.

The parties appeared to have a good co-parenting relationship.  According to the appeals court’s opinion, the child lived with the mother, but the father had always been a part of his life and assisted financially with his living expenses.  The father’s family was also significantly involved in the child’s life, helping the mother financially and with child care.

The mother had been adopted as a young child.  She grew up in Virginia and moved to Texas when she was 18.  She did not have any family other than her son in Texas.  Due to the distance, the child did not have the same amount of interaction with his mother’s family that he had with his father’s family.

 

The mother testified her surname was her adoptive family’s name.  She also testified it was important for her son to have her surname because he was the only biological relative she knew.  She also said it could help him be connected to “different pieces of himself and his history.” She did not believe having her surname instead of his father’s would have a negative effect on the child.

The father testified he thought a name change would help avoid confusion at places like doctor’s offices.  He also hoped the child would play sports and wanted the child to use the father’s name.

Both parents agreed the child was too young to know his name.  Each also said they would not change their surnames.

The father testified the mother did not give him a choice regarding the child’s name.  He also indicated he believed he did not have a choice with regard to signing the acknowledgement of paternity.  He testified he thought the child would have trouble when he got older if he did not have his father’s last name.  He said he did not know any children who did not use their father’s last name, though the children he knew had parents who were married to each other.

The father’s father testified to what he and his wife had done for the child and his mother.  He also testified that he was very close to the child.  He testified that they did things for the child and his mother because they loved them both.

The trial court found it was in the child’s best interest to change his name to include his father’s last name.  The mother appealed, arguing the evidence was legally and factually insufficient to support the finding.

In considering whether a name change would be in a child’s best interest, the court considers various nonexclusive factors, including whether it would avoid embarrassment, inconvenience, or confusion for the custodial parent or child, whether the present or potential changed name would be more convenient, how long the current name has been used, how the change affects the child’s bond with the parent or other family members, and whether the parent is trying to alienate the other parent by seeking the change.  Courts do not have to weight each factor equally.

The appeals court found there was little or no evidence that changing the child’s name would have a negative effect on the mother or child.  The appeals court found there was legally and factually sufficient evidence to support a finding the change would be in the child’s best interest.  The child was only 14 months old and therefore did not have meaningful attachment to his mother’s name.  He had not started school or been involved in extracurricular activities under his mother’s name.  The child was on the father’s health insurance, so the court found it could be beneficial for medical appointments and billing for the child to have his father’s name.

The appeals court acknowledged the mother was the primary caretaker, but also noted the father and his family were an important part of the child’s life.  The mother’s family was less involved in the child’s daily life due to distance. The appeals court found the father’s last name would better help identify the child with a family unit.  The mother and her family were not from the area and did not have the type of ties to the local community that the father’s family had.  The appeals court found having the father’s name would strengthen the child’s relationship with the community.

Finally, the appeals court found the father was not seeking the change to alienate the mother from the child. There was evidence that the father and his family cared for the mother and expected to continue doing so.

The appeals court found no abuse of discretion in the trial court’s finding that changing the child’s name to include his father’s surname was in the child’s best interest.  The appeals court affirmed the trial court’s judgment.

Sometimes unusual disputes arise in matters relating to children, even if both parents care for each other and want to work together.  If you are facing a dispute involving child custody or other matters relating to your children, an experienced Texas family law attorney can help.  Call McClure Law Group at 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

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Originally published by Kelly McClure.

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The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

 

The father appealed, arguing the trial court erred in including the annuity payments in his net resources and therefore erred in calculating the amount of child support and medical support.  The appeals court considered the plain language of the statute defining resources.  The statute specifically addresses annuities, stating, “Resources include…all other income actually being received, including… annuities…”  Although previous cases distinguished between settlement annuities and other types of annuities, the appeals court declined to draw such a distinction.  The appeals court pointed out that the statute included “annuities” within “resources,” and did not differentiate between types of annuities.  Furthermore, the statutory language did not differentiate between the portion of the annuity payment representing repayment of premiums and the portion that represented earned interest.  The appeals court therefore found no error in the trial court including the full amount of the monthly annuity payment in the father’s resources.

The appeals court in this case found that the entire annuity payment could be included in the parent’s net monthly resources.  However, this holding is inconsistent with the previous holding of another Texas appeals court.  Although the language in the statute provides that annuities are included in net monthly resources, there is also language stating that the “return of principal” is not included.  The issue, therefore, may not be completely settled.  Different facts or a different court could lead to a different result.  If you are anticipating a child support dispute involving an annuity, the skilled child support attorneys at McClure Law Group can help.  Call us at 214.692.8200 to schedule an appointment to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

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Originally published by Francesca Blackard.

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Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

 

The process server testified regarding his attempts to serve the girlfriend.

The mother’s 15-year-old daughter testified the father’s girlfriend had contacted her on Instagram and made negative comments about her mother.  The court allowed screenshots of the Instagram communications into evidence over the father’s objection that they were hearsay and had not been authenticated.

The mother testified the girlfriend had contacted her about her affair with the father.  She alleged the girlfriend had posted nude photos of herself online and had made social media posts about marijuana and alcohol.  She also testified the girlfriend and child got along well and she had no evidence that the girlfriend had ever harmed the child.

The father moved for rehearing after the court granted the “morality clause.” After the hearing, the trial court entered both a morality clause and an injunction.  The morality clause provided that no unrelated person of the opposite sex in an intimate relationship with a parent could spend the night when the child was in that parent’s care.  The permanent injunction enjoined the father from allowing the child to have any contact with his girlfriend.

The father appealed, arguing the injunction was not supported by proper evidence.  He argued the trial court should have excluded the daughter’s testimony because she was not disclosed as a witness.  Evidence that is not properly disclosed can generally not be admitted just to satisfy the interest of justice, but may be admitted if there is a good cause.  The mother argued that the Instagram messages were sent during the week before the hearing, and this timing constituted good cause not to supplement the discovery responses before the hearing.  The father argued he was unfairly surprised and prejudiced.  Some Texas appeals courts have held a trial court should admit testimony despite unfair surprise or lack of good cause for a delay in disclosure if admission of the evidence is in the best interest of the child.  Based on this standard, the appeals court found no abuse of discretion in the admission of the daughter’s testimony.

The appeals court also rejected the father’s argument that the Instagram messages should have been excluded as hearsay.  A statement is only hearsay if it is offered to prove the truth of the matter asserted.  The messages were not presented to prove the truth of the matter asserted.  The mother presented the negative statements about her not to prove they were true, but to show the communications had been made.  The communications were therefore not hearsay.

The father also argued there was not sufficient evidence to support a permanent injunction.  Generally, to get a permanent injunction, a party must show there is a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law.  In child custody cases, however, a court may grant a permanent injunction that is in the best interest of the child even if all of these elements are not met.  The appeals court found no abuse of discretion in the trial court’s granting of the permanent injunction upon finding it was in the child’s best interest.

The father also argued that there was insufficient evidence to support the injunction.  The appeals court noted that sufficiency of the evidence was not an independent ground to overturn the injunction.  It is instead a factor in determining whether the trial court abused its discretion.

The mother’s daughter testified the father’s girlfriend made negative comments about the mother and the screenshots she provided reflected the nature of those messages.  The trial court could have found the child was at risk of being exposed to similar comments as those directed at her 15-year-old half-sister.  The mother had also testified she had spoken to the father about the girlfriend’s drug-related posts, and he indicated he was aware of her drug use.  The trial court could have found the girlfriend had used illegal drugs, that the father was aware of it, and that he was not opposed to the drug use.  The trial court also could have found the girlfriend presented a risk of promoting parental alienation.  The trial court could therefore have found that it was not in the child’s best interest to allow contact with the girlfriend.  The appeals court found no abuse of discretion in the issuance of the permanent injunction and affirmed the judgment.

If you are involved in a child custody matter, a skilled Texas custody attorney can help pursue any necessary court orders.  Set up an appointment with McClure Law Group by calling 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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