Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation
Originally published by Robert Epstein.
Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children. In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent. In a recent case, a mother appealed an order modifying visitation.
The parents had two children during their marriage. The mother moved to another town and filed for divorce. The decree required the father to use a Soberlink alcohol monitoring device before and during visitation. The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.
The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits. She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity. She also alleged the father failed one of his alcohol tests.
The father filed a counter petition, asking for standard visitation with exchange of the children occurring about midway between the parents’ homes in Alice. He claimed the modifications were in the children’s best interests and that there was a material and substantial change in circumstances since the divorce decree.
The trial court ordered a mental evaluation of the father, and based on that evaluation, allowed him unsupervised overnight visitation. The trial court issued a final order granting standard unsupervised visitation, omitting the Soberlink requirement, and requiring the parents to meet in Alice to exchange the children.
The mother appealed, arguing the trial court abused its discretion in ordering the parents to exchange the children in Alice. Pursuant to Tex. Fam. Ann. § 153.316, the court must order the parents to surrender the children at one of their homes. The appeals court noted, however, that this section only applies to the original possession order, and this case involved a modification. Modifications are governed instead by § 156.101, which allows modification of a possession order if it is in the children’s best interest and the circumstances have changed. The mother had alleged a change of circumstances in her own petition to modify. Under Texas case law, that allegation of changed circumstances constituted a judicial admission for purposes of the other father’s similar pleading.
The mother argued exchanging the children in Alice was not in their best interest. The appeals court noted, however, that there was evidence supporting a conclusion that meeting in Alice was in the children’s best interests. The father testified he had not exercised his right to communicate with his children electronically because the mother had stated she would not allow them to communicate through video-teleconference or Skype. He claimed she was trying to prevent him from having a strong relationship with his children. He asked the court to have them meet in Alice if standard visitation was granted. He said it was a little more than halfway for him and he thought it was in the children’s best interests for him to be in their lives.
The mother’s attorney argued she was working on her master’s degree in clinical psychology and was required to be at a facility all day and could not get from work to Alice at the scheduled time. The father offered to change the time, but pointed out it would only be once a month. The court agreed to order the weekend visitation exchange to occur in Alice.
The appeals court found there testimony that seeing their father more often was in the children’s best interests and found no abuse of discretion in the court ordering the exchange to occur in Alice.
The mother also argued the court abused its discretion in eliminating the Soberlink requirement. The divorce decree required sobriety testing before and during the father’s time with the children for five years after the divorce. The mother argued the father had not requested the removal of the condition and the judgment had to conform to the pleadings. The appeals court noted, however, that the best interests of the children are the most important issue in custody cases, and technical rules should not interfere with acting in their best interests. The appeals court found that the trial court did not abuse its discretion in not conforming to the pleadings if it did not do so arbitrarily.
The mother argued the Soberlink requirement was in the children’s best interests. The father testified he used a breathalyzer twice a day for another court and did not have any violations. The mother offered evidence of an alleged positive Soberlink test result, but the father testified it was a false positive and another test six minutes later was confirmed at 0.000. The trial court found the first test was a false positive. The court further stated the father testified he was receiving psychological and psychiatric treatment. The appeals court found no abuse of discretion in the trial court’s elimination of the Soberlink requirement because there was some evidence it was no longer in the children’s best interests.
The mother also argued the trial court erred in granting overnight visitation to the father. The children’s counselor testified that “It would be very difficult and traumatic for them to be away from their mother at night.”
The father argued the original divorce decree granted him unsupervised overnight visits. The father’s psychological evaluation resulted in a recommendation the father have full access to his children with standard visitation. The appeals court found the trial court had sufficient evidence to exercise its discretion and did not abuse its discretion. There was evidence it was in the children’s best interests to have unsupervised, overnight visits with the father.
The appeals court affirmed the trial court’s judgment.
If you are seeking or fighting a modification of a custody order, an experienced Texas custody attorney can help you fight for your children. Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.