I. INTRODUCTION
This paper is intended to address the current Texas law with regard to custodial modification within this state, update your understanding of the current statutory scheme with recent interpretative case law interspersed, advise you with regard to proposed legislative amendments to clarify and align the current statutory scheme with previous beneficial but now arcane concepts, and apprise you of recent significant analyses to approach modifying custody in joint managing circumstances. Many thanks to the legislative committee of the Family Law Section.
II. JURISDICTION
A. Continuing, Exclusive Juris-diction
The court that rendered the order sought to be modified generally retains continuing, exclusive jurisdiction unless that jurisdiction has been transferred to another court under Family Code chapter 155 or § 262.203. Tex. Fam. Code Ann. §§ 155.002, 155.201 (Vernon 1996).
B. Jurisdiction to Modify Order
1. General rule
The court with continuing, exclusive jurisdiction may modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to a child, and support of a child unless certain circumstances exist. TFC § 155.003(a).
2. Interstate issues
The Texas court may not exercise its continuing, exclusive jurisdiction to modify managing conservatorship if the child’s home state is not Texas or if modification is precluded by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). TFC § 155.003(b). The court may not exercise its continuing, exclusive jurisdiction to modify conservatorship as to a child if the child’s home state is not Texas and all parties have established and continue to maintain their principal residence outside Texas or if each individual party has filed written consent with the Texas court for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction of the suit. TFC § 155.003(c). However, if even one party to the original action remains a Texas resident Texas alone can modify custody. TFC § 156.202. This is a major departure from the former Texas version of the UCCJA. If the modification suit involves out-of-state parties or orders, reference should be made to the UCCJEA, chapter 152 of the Family Code. This issue was thoroughly examined in Chapter 6, Jurisdiction and Venue, at the 2000 Marriage Dissolution Course in Ft. Worth.
C. Loss of Continuing, Exclusive Jurisdiction
A Texas court loses its continuing, exclusive jurisdiction to modify its order as to resident parties if an order of adoption is rendered after the court acquires continuing, exclusive jurisdiction; if the parents have remarried each other after the dissolution of a previous marriage between them and file a suit for the dissolution of their subsequent marriage combined with a suit affecting the parent-child relationship as if there had not been a prior court with continuing, exclusive jurisdiction over the child; or if another court assumed jurisdiction over a suit and rendered a final order based on incorrect information received from the bureau of vital statistics that there was no court of continuing, exclusive jurisdiction. TFC § 155.004(a) (Supp. 1998).
III. Venue
A. Mandatory Transfer
If custody of a child is established pursuant to a Texas decree, the court which rendered the decree is the court of continuing jurisdiction. However, the case must be transferred to the county of the child’s residence upon timely motion by either party if the child has resided in another county for more than six (6) months. TFC § 155.201(b). This rule does not apply if a cross-motion to modify is filed subsequent to an original motion to modify unless the court could have transferred the cause at the time of the filing of the original motion. TFC § 155.201(c). A recent case, In re Sinonek, 3 SW 3d 285 (Tex.App.—Waco 1999, no pet), demonstrates the interplay of contempt and modification. In Sinonek, in 1994 the father was granted visitation rights in a McLennan County divorce judgment. In 1998 the mother was found guilty of contempt for interfering with the father’s visitation in McLennan County, but the jail commitment was suspended. The father later filed a motion to revoke the order suspending commitment in McLennan County. The mother filed a McLennan County answer, a motion to modify and a motion to transfer to Matagorda County, where she and the child had resided for more than six months. McLennan County withdrew its abeyance of contempt and ordered the mother to jail for 6 months. The mother filed for a writ of mandamus to compel McLennan County to transfer the modification to Matagorda County. The court held that McLennan County was required to transfer the SAPCR to Matagorda County for the purposes of the modification, but not for the contempt portion of the case. id, at 290.
The child’s residence need not have been continuous and uninterrupted, but the court must consider the location of the child’s “primary” residence in making its determination. TFC § 155.203. The six month residency requirement begins to run from the time children actually reside in alternate county, not from later date of signing of original order. Tippy v. Walker, 865 S.W.2d 928 (Tex., 1993). Party seeking transfer need not have been a party to the original proceeding. In the Interest of M.R.M., 807 S.W.2d 779 (Tex.App.—Houston-14th 1991) error denied. Children reside where primary custodian resides. Cassidy v. Fuller, 568 S.W.2d 845 (Tex., 1978).
B. Discretionary Transfer
Further, the trial court may transfer venue if (1) the children have resided in another county less than six (6) months TFC § 155.202(a), or if the court determines a more convenient forum exists in the other county. TFC § 155.202(b).
C. Procedure
For transfer to be ordered a timely motion by the party must be filed. For petitioner, the motion is timely if filed at the time of the initial pleading. For respondent or other party, it is timely if filed on or before answer day or prior to the first hearing, whichever occurs sooner. TFC § 155.204.
IV. STANDING
A. Parties Generally
A party affected by an order may file a suit to modify that order in the court with continuing, exclusive jurisdiction. A person or entity who has standing to sue under chapter 102 may file a modification suit in the court with continuing, exclusive jurisdiction. Tex. Fam. Code Ann. § 156.002 (Vernon 1996).
As amended in 1999, Tex. Fam. Code Ann. § 102.003 (Vernon Supp. 2000) provides that an original suit affecting the parent-child relationship may be brought at any time by—
1. a parent of the child;
2. the child, through a representative authorized by the court;
3. a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;
4. a guardian of the person or of the estate of the child;
5. a governmental entity;
6. an authorized agency;
7. a licensed child-placing agency;
8. a man alleging himself to be the biological father of a child filing in accordance with Code chapter 160;
9. a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition;
10. a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Code chapter 161 or to whom consent to adoption has been given in writing under Code chapter 162;
11. a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than ninety days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition;
12. a person who is the foster parent of a child placed by the Deparmtent of Protective and Regulatory Services in the person’s home for at least twelve months ending not more than ninety days preceding the date of the filing of the petition; or
13. a person who is a relative of the child within the third degree by consanguinity if the child’s parents are deceased at the time of the filing of the petition.
In computing the time necessary for standing under the provisions in items 9, 11, and 12 above, the court may not require that the time be continuous and uninterrupted but shall consider the child’s principal residence during the relevant time preceding the date the suit is begun.
B. Grandparents and Non-Parents
1. As original party to modification case
As amended in 1999, TFC § 102.004(a) provides that, in addition to the general standing to file suit provided by Code § 102.003(13) (added in 1999), a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that the order sought is necessary because the child’s present environment presents a serious question concerning the child’s physical health or welfare or that both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
Query – would this now pass muster with the U.S. Supreme Court in Troxel v. Granbury? In Troxel v. Granbury, 120 S.Ct. 2054 (2000) the United States Supreme Court struck down as overbroad in violation of the substantive due process rights of a parent assured by the 14th Amendment to the United States Constitution a Washington state statute that permitted any person (not just grandparents who were parents of the deceased father, the aggrieved party in Troxel) to petition a court for access or visitation with a child at any time, and authorized a state court to permit visitation if the Court felt it would serve a child’s best interest. The court’s analysis, rendered in a consensus decision by Justice O’Conner on a divided court, makes clear that several on the court feel that any intrusion on a fit and proper parent’s decisions with regard to those persons who have access to his or her children would be constitutionally impermissible. Texas’ custody statute does meet this objection by requiring a serious immediate question before a non-parent can file a modification as an original party. But Texas’ grandparent access statute, which only requires a breakup of the original family unit by death, separation, or divorce, might not.
2. By way of intervention in pending modification case
If grandparents, or other persons who have intervened meet the “substantial interest” test, they may seek every remedy available in Title 5 litigation, including custody, even if they do not meet the requirements of TFC § 102.003. McCord v. Watts, 777 S.W.2d 809 (Tex.App.—Austin, 1989) no writ. However, the pleadings and evidence (if proffered) must affirmatively establish the existence of substantial past contact to justify intrusion into the case by a non-parent. Segovia-Slape v. Paxson, 893 S.W.2d 694 (Tex.App.—El Paso, 1995) writ denied. Segovia-Slape involved an attempted intervention by a maternal aunt whose connection with the children was a few weeks living arrangements. No pleadings set out any facts, and the evidence was disputed at a pretrial hearing. The trial court announced at the outset that it had a blanket rule of no interventions. Although the El Paso court refused to condone the “blanket policy”, it upheld the motion to strike the intervention based on slight evidence of interest. It is also important to note that regardless of how put out a court may be with either party in a contempt matter, absent pleadings and fair notice to the parties, the court may not modify custody after hearing the contempt where contempt is the only remedy pled. In the Interest of A.M., 974 S.W.2d 857 (Tex.App.—San Antonio, 1998) no pet.
Query – Would intervention be constitutionally permissible under this statute requiring only “substantial interest” and no showing of unfitness by a parent under the Troxel reasoning? The author believes this issue is ripe for controversy now.
V. PLEADINGS AND DISCOVERY
A. Pleadings
The petition and all other documents in the proceeding should be entitled “In the Interest of ____________, a Child.” Tex. Fam. Code Ann. § 102.008(a)(Vernon 1996). The petition must contain information required by TFC § 102.008(b).
Both the original petition and the original answer must include a statement on alternative dispute resolution that meets the requirements of Code § 102.0085. TFC § 102.0085(a) (Supp. 1998). The statement is not required in a pleading in which all service of citation is by publication. TFC § 102.0085(c)(1).
B. Discovery
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1. As to discovery, the recent case of In Re P.M.B., 2 S.W.3d 618 (Tex.App.—Houston [14th Dist.] 1999, no pet) gives hope to those who miss deadlines. In In Re P.M.B. both parents were appointed as joint managing conservators with the father having the right to determine the child’s primary residence. The mother filed a motion to modify and served the father with discovery. The father did not respond and after a motion to compel the parties agreed to informally exchange documents. After the mother had won the case, the father applied for a new trial, which was granted. During the second round of the case, the father filed discovery requests and the mother asked for protection and sanctions because the father had not answered discovery requests from the first trial. The trial court ordered that any of the father’s witnesses or documents that were not identified in his discovery responses were to be excluded as evidence from trial. The mother again won her case after the second trial and the father appealed. The court held that under TEX. R. Civ. P. 215(5), a party who does not respond to discovery shall not be entitled to present evidence he was required to provide in discovery, unless the trial court finds good cause to require admission of the discovery. In conservatorship cases, the child’s best interest is the court’s primary consideration. The trial court abused its discretion in excluding evidence without attempting a lesser sanction that could allow the father to present all the evidence so a court could make a fully-informed decision.
VI. NOTICE AND SERVICE
The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under chapter 156. Tex. Fam. Code Ann. § 156.004 (Vernon 1996). A party whose rights, privileges, duties, or powers may be affected by the suit to modify is entitled to receive notice by service of citation. TFC § 156.003.
Provisions concerning service of citation by publication in a title 5 case are contained in TFC § 102.010. If citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service if the court finds and recites in its order that the method of substituted service if the court finds and recites in its order that the method so prescribed would be as likely as publication to give the defendant actual notice. Tex. R. Civ. P. 109a.
As amended in 1999, Tex. Fam. Code Ann. § 156.003 (Vernon Supp. 2000) provides that a party whose rights and duties may be affected by a suit for modification is entitled to receive notice by service of citation.
VII. FRIVOLOUS SUITS
If the court finds that a suit to modify is filed frivolously or is designed to harass a party, the court shall order the offending party to pay attorney’s fees. Tex. Fam. Code Ann. § 156.005 (Vernon 1996).
VIII. GROUNDS FOR MODI-FICATION: CONSERVATORSHIP
A. Introduction
Attached to this paper as Appendices A & B are proposed legislation drafted by members of the family law section of the State Bar of Texas pertinent to this subject, and to temporary orders in modification suits, which seeks to revise fundamental changes to Texas substantive custody modification litigation resulting from the dramatic legislative changes that have occurred beginning with the 1995 amendments to the Texas Family Code establishing that parents are presumed to be appointed joint managing conservators. Although a subsequent amendment provided that the parties are entitled to a jury issue submitted as to which party shall be granted the right to determine the primary residence of the child, most of the family code modification language is directed toward the antiquated terminology of sole managing conservatorship. The author vigorously endorses the proposed new legislative changes and commends them to the reader’s perusal, and hopefully, to his or her support and sponsorship. If these changes take place, dealing with modification issues and juries in these matters will become definable again. It is recommended that these changes be implemented in order that stability can again return to modification litigation. Please take a moment to review Appendix A and Appendix B.
However, until such time as the revisions take place, we must refer to the arcane but applicable rules of this new millennium. These are the rules:
B. Sole Managing Conservatorship of a Child of Any Age
If the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since rendition of the order and the appointment of the new sole managing conservator would be a positive improvement for the child, the court may modify an order that designates a sole managing conservator of a child of any age. Tex. Fam. Code Ann. § 156.101(a) (Vernon 1996).
C. Sole Managing Conservatorship of a Child Ten Years or Older
As amended in 1999, Tex. Fam. Code Ann. § 156.101(b) (Vernon Supp. 2000) provides that the court may modify an order that designates a sole managing conservator of a child ten years of age or older if the child has filed with the court in writing the name of the person who is the child’s choice for managing conservator and the court finds that the appointment of the named person is in the best interest of the child; see TFC § 153.008. Note that in Boriack v. Boriack, 541 S.W.2d 237 (Tex. App.—Corpus Christi, 1976), writ dism’d., in construing the word “court” in the phrase “subject to the approval of the court” in a predecessor to Code § 153.008, the court determined that it meant the judge only. This appears to be the current law, but is addressed in the proposed legislative amendment to §153.008 set forth in Appendix B to permit any trier of fact to have such knowledge.
The 1995 amendments to the Family Code created a rebuttable presumption that the appointment of both parents as joint managing conservators as joint managing conservators is in the best interest of the child. TFC § 153.131(b) (Supp. 1998). The provisions of § 153.008 are in conflict with the presumption of joint managing conservatorship in § 153.131. This is also addressed in the proposed legislation.
D. Modification of Sole Managing Conservatorship within One Year
In addition to the above, if the suit is filed within one year after the date of the rendition of the order to be modified, the person filing the suit must execute an attach an affidavit that contains at least one of these allegations with supporting facts:
1. that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
2. that the sole managing conservator is the person seeking or consenting to the modification and that modification is in the best interest of the child; or
3. that the child’s sole managing conservator has voluntarily relinquished the actual care, control, and possession of the child for not less than six months and the modification is in the best interest of the child.
TFC § 156.102(a), (b) (1996).
The court must deny the relief sought and refuse to schedule a hearing unless the court determines, on the basis of the affidavit, that adequate facts to support one of the above allegations are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, a time and place for the hearing must be set. TFC § 156.102(c). This would also become the law as to any primary caretaker if the legislative changes take place.
E. Voluntary Relinquishment for Not Less Than Six Months
If the sole managing conservator has voluntarily relinquished actual care, conrol, and possession of the child for a period of not less than six months, only a showing that the modification is in the best interest of the child is required for modification of an order designating a sole managing conservator. TFC § 156.103.
F. Change From Sole to Joint Managing Conservatorship
If a parent of a child requests appointment as a joint managing conservator and the court finds that the circumstances of the child or the sole managing conservator have materially and substantially changed since the rendition of the order to be modified and that retention of a sole managing conservatorship would be detrimental to the welfare of the child and that the appointment of the parent as a joint managing conservator would be a positive improvement for and in the best interest of the child, the court may modify an order that designates a sole managing conservator. TFC § 156.104. The power of the court to order a joint managing conservatorship under Code chapter 153 is a material and substantial change of circumstances sufficient to justify a modification of an existing sole managing conservatorship to a joint managing conservatorship if the sole managing conservatorship was ordered in a suit affecting the parent-child relationship in which a final order was rendered on or after September 1, 1987; it does not constitute a sufficient change of circumstances if the sole managing conservatorship was ordered in a suit in which a final order was rendered before September 1, 1987. TFC § 156.105.
G. Presumption of Joint Managing Conservators
TFC § 153.131(b) (Supp. 1998) creates a rebuttable presumption (absent a finding of a history of family violence involving the parents) that the appointment of the parents as joint managing conservators is in the best interest of the child. While not placed in the modification chapters of the Code, this presumption will affect all suits affecting the parent-child relationship.
Consider, however, the recent Supreme Court case In the Interest of V.L.K., No. 99-0843, Texas Supreme Court April 12, 2000. § 153.131(a) ordinarily creates a presumption that unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. The court noted however, that this presumption ends if a previous order has named a non-party as sole or primary managing conservator citing. In Re A.D.H., 979 S.W.2d 445 (Tex.App.—Beaumont, 1998) no writ. In reversing the appellate court, the Supremes held in V.L.K. that it is proper to instruct a jury that there is no presumption that a parent be appointed, where a non-parent has previously been appointed primary, even in a case involving a different non-parent than originally appointed who is seeking the modification.
H. Change from Joint to Sole Managing Conservatorship
A court may replace a joint managing conservatorship with a sole managing conservatorship if the child’s present living environment may endanger the child’s physical health or significantly impair the child’s emotional development or there has been a substantial and unexcused violation of the terms and conditions established in the existing conservatorship order or the circumstances of the child or of one or both joint managing conservators have so materially and substantially changed since the rendition of the order that it has become unworkable or inappropriate under existing circumstances and if the appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child. TFC § 156.203 (1996).
Because of the bizarre interrelationship that has developed wherein juries no longer determine the critical issue of possession in modifying joint managing conservatorship (presumptively every parent/parent custody decree) motions requesting modification from joint to sole is currently where most jury custody modification litigation ends up. There is not even a prohibition to instigating this litigation within one year without a threshold affidavit determination as is required in sole to sole custody modification litigation. Hopefully, proposed amended legislation to TFC § 156.102 will hopefully rectify the situation and return us to a less litigious world (see legislative attachment, supra).
I. Change of “Terms and Conditions” of Joint Managing Conservatorship (So Called Joint to Joint Modification)
1. Introduction
If the circumstances of the child or of one or both joint managing conservators have materially and substantially changed since the rendition of the order to be modified or the order has become unworkable or inappropriate under existing circumstances and if a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child, the court may modify the terms and conditions of a joint conservatorship order. TFC § 156.202.
If the joint managing conservators enter into a written agreement to modify the terms and conditions of an existing joint conservatorship order, the court may modify the existing order according to the agreement if the court finds that the modification meets with standards for joint managing conservatorship in Code chapter 153. TFC § 156.201.
2. Jury issue (?)
a. Discussion
The most important substantive legislative inroad to present day custody modification is the pseudo-custody issue now codified at TFC § 105.002(c)(1)(d) effective 1997 which permits a jury to determine “the primary residence of the child.” Although the pattern jury charge promulgated by the State Bar of Texas takes the position, at PJC 217.10, based on Martin v. Martin, 776 S.W.2d 572 (Tex., 1989) (discussed, infra) that modification of “terms and conditions” in a joint managing conservatorship (including, presumably, the right to determine domicile) is “advisory” only, and therefore not binding on the court, pursuant to TFC § 105.002(d), this author believes that if the jury finds that the standards of TFC § 156.202 are met, the proponent should be entitled to submit a binding jury issue regarding “the determination of the primary residence of the child” pursuant to TFC § 105.002 (c)(1)(D), in a joint to joint conservatorship modification trial. This position is supported by dicta in Albrecht v Albrecht, 974 S.W.2d 262 (Tex.App.—San Antonio 1998) no writ, where the parties stipulated in an original divorce action that they would be appointed JMCs but asked a jury to determine a submitted special issue asking “who should be appointed as joint managing conservator…with primary care.” Following a jury verdict naming father, the trial court awarded father the right to determine domicile, but chose to split possession equally between the parties on six month intervals. In reversing the custody division, the San Antonio court specifically held that such a split was not in the child’s best interest and contravened the jury determination. The Court then remanded the case to the trial court to set terms of possession consistent with the jury’s determination, presumably a Standard Possession Order. This position is also quite consistent with the analysis enunciated by the Texas Supreme Court in Phillips v. Beaber, 995 S.W.2d 155 (Tex. 1999) wherein the court, citing Leithold v. Plass, 413 S.W.2d at 700, (Tex., 1967), indicated that the exclusive right to establish a child’s domicile, along with exclusive primary possession of a child, subject to the other joint managing conservator’s periods of possession, was equated to “custody,” and analogized that a suit to modify the right to establish a child’s residence is a motion to modify custody, at least for the purposes of the UCCJA (now repealed).
b. Jury submission
An appropriate instruction and question would read:
“For the order that designates Party A as the party with the exclusive right to determine the domicile of the child(ren) to be modified and appoint Party B as the party with the exclusive right to determine the child(ren)’s domicile, it must be proved that:
“(1) the circumstances of the child or of one or both Joint Managing Conservators have materially and substantially changed since the rendition of the order to be modified, or
“(2) the order has become unworkable or inappropriate under existing circumstances, and
“(3) a modification of the terms and conditions of the order to name Party B as the party who has the right to designate the primary residence of the child(ren) would be a positive improvement for and in the best interest of the child(ren).
“Question 1: Should Party B be named as the person who has the exclusive right to determine the primary residence of the child(ren)?
“Answer yes or no
“Answer: ________
“Question 2: Should the person you have named in Question 1 above be permitted to establish the primary residence of the child(ren) without regard to geographic location or should the primary residence of the child(ren) be maintained in _____ County and any contiguous county?
“Answer by writing “Without regard to geographic location” or “______ County and contiguous counties.”
“Answer: _______________________ ___________________________”
3. Non-jury trial
Even absent a jury, perhaps the most common avenue in which modern custody modification arises is in addressing the primary parent’s contumacious violation or repudiation of terms and conditions imposed on the parties in the decree creating the joint managing conservatorship. Specifically, courts are frequently asked to reverse primary joint managing conservators because either the primary parent moves in violation of a court mandated geographic restriction (now commonplace, and required to be addressed pursuant to § 153.133(a) (1)), or the primary parent violates a cohabitation, drug or alcohol use, or other significant prohibition in the original order. Violations of such orders have long been the basis for custody modification requests from the trial courts sitting as fact finders. See e.g. Phillips v. Beaber, supra (relocation); Valdez v. Valdez, 930 S.W. 725 (Tex.App.—Houston [1st Dist.] 1996) no writ. (drug use); however no definitive decision had been rendered on whether a finding that such violations occurred would constitute sufficient grounds for modification of primary possession until a recent decision by the El Paso court in Jenkins v. Jenkins, 16 S.W. 3d 473 (Tex.App.—El Paso, 2000) no writ. In Jenkins, the El Paso court, in a typically scholarly opinion authored by Justice Ann McClure, held that violation of an order prohibiting relocation of the child’s residence, and violation of a prohibition against unmarried heterosexual cohabitation each justified modification of effective custody, i.e. the right to determine the child’s domicile, under the standards set out in § 156.202. The Jenkins trial court modified an earlier order by naming father as the new custodian with the right to decide domicile because (1) mother had moved without the consent of the court in violation of a prohibition against same previously imposed by the court; and (2) mother had cohabitated with a man not her husband in violation of the court’s previous prohibition against same. The cohabitation order had not been challenged by appeal of the initial judgment. In determining the issue on appeal the Court determined that the appropriate standard of review is abuse of discretion, i.e. “whether the trial court acted in an arbitrary and unreasonable manner or…without reference to any guideline principals.”
The Court went on the discuss the present modification standards for joint managing conservators under § 156.202 clearly and insightfully. The analysis is particularly helpful in our present state of legislative enactments as precedent for custody modification disguised as control of “the right to decide domicile.” The following analysis is set forth in the opinion:
“Historically, Texas law has tried to ensure stability and continuity for children by imposing significant hurdles to modifications of managing conservatorship. When the Family Code was enacted in 1973, modification of sole managing conservatorship was measured by the now familiar test of a material and substantial change in circumstances, coupled with a best interest test. In 1975, an additional prong was added, requiring a finding that retention of the existing managing conservator would be injurious to the welfare of the child. Twenty years later, the “injurious retention: element, as it had come to be know, was abandoned. Currently, § 156.101 provides that a court may modify a sole managing conservatorship if the circumstances of the child, sole managing conservator, or possessory conservator have materially and substantially changed, and the appointment of a new sole managing conservator would be a positive improvement for the child.
“Joint managing conservatorship was not authorized by statute absent the agreement of the parties until 1987. The standard for modifying a joint managing conservatorship has always been less stringent, allowing a modification in the terms and conditions of the joint managing conservatorship upon a showing of a material and substantial change in circumstances or upon a showing that the decree has become unworkable or inappropriate under the circumstances and upon a showing that the modification would be a positive improvement for and in the best interest of the child. See Tex. Fam. Code Ann. § 156.202. As the basis for the motion to modify here, Chris alleged, and the trial court found, that the existing order had become unworkable or inappropriate under the circumstances.” Jenkins, supra at 478, 479.
The Court then found that the trial court’s determination did not constitute an abuse of discretion in finding that the violations established that the order had become unworkable or inappropriate.
Because of the timeliness of the Jenkins analysis to current modification custody litigation in joint custodial decrees, the case is reprinted in its entirety at Appendix C. The author further submits that this excellent decision gives further weight to the argument that submission of the issue of changing the party with the right to determine the child’s residence is a jury issue in a so-called joint to joint custody case. Hopefully, this problem will soon be moot if the legislative package is passed.
IX. TEMPORARY ORDERS
The temporary orders a court may generally enter in a suit affecting the parent-child relationship are listed in Family Code § 105.001.
While a suit to modify is pending, however, the court may not render a temporary order that has the effect of changing the designation of a sole or joint managing conservator appointed in a final order or decree unless the order is necessary because the child’s present living environment may endanger the child’s physical health or significantly impair the child’s emotional development; or the child’s managing conservator has voluntarily relinquished the actual care, control, and possession of the child for more than six months and the temporary is in the child’s best interest; or the child is ten years of age or older and has filed with the court in writing the name of the person who is the child’s choice of managing conservator and the temporary order naming that person as managing conservator is in the child’s best interest.
X. HABEAS CORPUS
Habeas corpus is not an appropriate means to initiate a proceeding to modify prior court orders in a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. §§ 157.371-.376 (Vernon 1996). Note that when a writ is met by the responsive filing of a suit to modify seeking temporary orders, Family Code § 156.006 alters the burden of proof necessary to effect a temporary change in conservatorship from the more onerous burden found in § 157.374.
XI. JURY
A party has a right to a jury trial on timely demand and payment of the jury fee (see rule 216, Texas Rules of Civil Procedure). Tex. Fam. Code Ann. § 105.002(a) (Vernon 1996). However, the right is limited. In a jury trial, a part is entitled to a jury verdict on the appointment of a managing conservator, the appointment of joint managing conservators, the appointment of a possessory conservator, and the determination of the child’s primary residence; the court may not contravene a jury verdict on such an issue. TFC § 105.002(c)(1), (d) (Supp. 1998). A party is not entitled to a jury verdict on the issues of child support, a specific term or condition of possession of or access to the child, or any right or duty of a possessory or managing conservator, other than primary residence; the court may submit such an issue to the jury, but the verdict is advisory only. TFC § 105.002(c)(2), (3), (d).
In Martin v. Martin, 776 S.W. 2d 572 (Tex. 1989), the court held that, because the jury findings are not binding under the Code provision, the trial court did not abuse its discretion in refusing to empanel a jury in a case that involved modification of access rights. In Fair v. Davis, 787 S.W.2d 422 (Tex.App.—Dallas 1990, no writ), the court explained that the Martin decision holds that all issues, including the threshold inquiry of whether there has been a substantial and material change of conditions, are advisory on the trial court in modification actions brought under Code provisions that are now found at §§ 156.401, 156.301, and 156.303.
XII. SOCIAL STUDY
In a suit affecting the parent-child relationship, the court may order the preparation of a social study into the circumstances and conditions of the child and of the home of any person requesting managing conservatorship or possession of the child. Tex. Fam. Code Ann. § 107.051(a) (Vernon 1996). The social study may be made by a state agency, including the Texas Department of Protective and Regulatory Services, or a person appointed by the court, who must have qualifications established by the rules of the department providing minimum qualifications for person who may conduct social studies. TFC I 107.051(b), 107.052(a). The study shall comply with the rules of the Department of Protective and Regulatory Services or the criteria established by the court. TFC § 107.052(b). The social study shall contain any history of physical, sexual, or emotional abuse suffered by the child. TFC § 107.052(c).
As amended in 1999, Tex. Fam. Code Ann. § 107.051(c) (Vernon Supp. 2000) provides that in a suit in which possession of or access to the child is an issue and in which the Department of Protective and Regulatory Services is not a party, the court shall appoint a private agency or person to conduct the social study.
XIII. PREFERENTIAL SETTING
In any suit affecting the parent-child relationship, after a hearing the court may grant a motion for a preferential setting for a trial on the merits filed by a party or by the attorney or the guardian ad litem for the child and may give precedence to that hearing over other civil cases if the court finds that the delay created by ordinary scheduling practices will unreasonably affect the best interest of the child. Tex. Fam. Code Ann. § 105.004 (Vernon 1996).
XIV. ATTORNEY’S FEES AND COSTS
The court may award costs in a suit or motion under title 5 of the Family Code and in a habeas corpus proceeding. Tex. Fam. Code Ann. § 106.001 (Vernon Supp. 1998). The court may also order the payment of reasonable attorney’s fees as costs in a suit under title 5 of the Code and may order the fees to be paid directly to an attorney. TFC § 106.002(a). An award of attorney’s fees may be enforced in the attorney’s name by any means available for the enforcement of a judgment for debt. TFC § 106.002(b) (1996). If the attorney’s fees are taxed as costs, the burden is on the party awarded the costs to ensure that they are covered by the cost bond. If an appeal is filed, the appellee’s attorney must move to increase the cost bond to ensure that it fully covers attorney’s fees taxed as costs. See rules 125-149 of the Texas Rules of Civil Procedure regarding costs and security.
A family court is not required to state good cause for adjudging costs against the successful party as is required in other civil cases. Goheen v. Koester, 794 S.W. 2d 830, 836 (Tex. App.—Dallas 1990, writ denied) (quoting Billeaud v. Billeaud, 697 S.W. 2d 652, 655 (Tex.App.—Houston [1st Dist.] 1985, no writ)).
As amended in 1999, Tex. Fam. Code Ann. § 107.015(a) (Vernon Supp. 2000) provides that an attorney appointed to represent a child or parent as authorized by subchapter B of chapter 107 of the Family Code is entitled to reasonable fees and expenses in the amount set by the court to be paid by the parents of the child unless they are indigent.
XV. PARENT EDUCATION AND FAMILY STABILIZATION COURSE [new]
Family Code § 105.009, added in 1999, provides that in a suit affecting the parent-child relationship, including an action to modify an order in a suit affecting the parent-child relationship providing for possession of or access to a child, the court may order the parties to attend a parent education and family stabilization course if the court determines that the order is in the child’s best interest. Tex. Fam. Code Ann. § 105.009(a) (Vernon Supp. 2000). The parties may not be required to attend the course together and may be prohibited from taking the course together if there is a history of family violence. TFC § 105.009(b).
The course, which must be at least four hours but not more than twelve hours long, must be designed to educate and assist parents about the consequences of divorde on parents and children and must cover certain topics specified in the Code. TFC § 105.009(c). It may not be designed to provide individual mental health therapy or individual legal advice. TFC § 105.009(d).
Information obtained in a course or a statement made by a participant to a suit during a course may not be considered in the adjudication of the suit or in any subsequent legal proceeding, and any report that result from participation may not become a record in the suit unless the parties stipulate to the record in writing. TFC § 105.009(f).
A party who fails to attend or complete a course ordered by the court may be held in contempt, have his pleadings stricken, or be the subject of sanctions under rule 215 of the Texas Rules of Civil Procedure. Failure or refusal to attend or complete a course may not delay the court from rendering judgment. TFC § 105.009(g).
XVI. CONCLUSION
The area of law dealing with custody modification has undergone dramatic change in the last 5 years due to controversial and fundamental legislative amendments. Much frustration and confusion has ensued from these changes as attorneys and litigants have struggled with the effect of the changes. The author hopes that most of the difficulties wrought by the overhaul of custody modification legislation will soon be addressed in order to facilitate a more orderly resolution. In the meantime, it is hoped that the paper’s analysis will provide knowledge where the law is certain, and food for thought where ambiguity exists.