Child custody issues can be difficult for the parties involved at any time, but when the custody case crosses a state line, Dallas family law attorney Mark Nacol warns that many more conflicts and problems may arise.
Most states follow a uniform law regarding determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes laws which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act. Texas has adopted these statutes. The Uniform Child Custody Jurisdiction Enforcement Act defines which state has or may maintain jurisdiction in a particular case and often mandates that other states recognize decisions handed down by the state determined to have jurisdiction.
The Act states, among other things, that a court may rule on custody issues if the Child:
- Has continually lived in that state for 6 months or longer
- Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
- Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
- Has been abandoned: or is safe in current state, but could be in danger of neglect or abuse in the home state
There are a number of core factors involved in determining which state is appropriate to initiate or maintain an existing suit. Usually, there are only two states involved, but it is possible to have more than two states involved in cases where there is a frequent moving of the parties and or the children. Generally, any state in which one of the parties and the child has continually resided for a year may establish venue to commence a lawsuit.
The Nacol Law Firm PC represents parents trying to enforce these laws; cases where there is a need to persuade courts to apply the specific, narrow exceptions to these general rules in order to have custody cases heard in the most convenient forum in which the most evidence is available; cases where the child’s home state or other basic questions need to be clarified, and cases where a parent has violated or has been falsely accused of violating these laws.
Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:
1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.
2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.
3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.
Material or Substantial Change
What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.
Child Wants Change
The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.
This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.
After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:
1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.
Modification within one year of prior court order
A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:
1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.
2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.
3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’
There are several laws that guarantee the enforcement of custody and visitation orders from cooperating states. These laws include the Uniform Child-Custody Jurisdiction and Enforcement Act ( UCCJEA ) and the Parental Kidnapping Act.
Former spouses often use informal visitation arrangements as an opportunity to assault, harass, stalk, and emotional abuse their children and former partners. In addition, some parents will use their children as a means to hurt the other parent by denying access to the child(ren) even though such access has been ordered by the court, i.e. failing to be at home during scheduled visitation periods, failing to bring the child(ren) to a scheduled location for the other parent to exercise their court ordered visitation, faking illness, etc.
Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety. Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence. Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit.
Consequently, when supervision is indicated, possession/visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts. The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent. Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits. Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).
If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established. Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent. The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.
• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation. The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship. Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.
To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.