In the Interest of A. A. S. and N. T. S., Children v. the State of Texas, 12-22-00207-CV

Background

A.C. and K.S. divorced in June 2019; they were named joint managing conservators and A.C. was given the exclusive right to designate the children’s residence within Gregg or Harrison counties.
In February 2020 A.C. filed to modify the parent–child relationship alleging material and substantial changes and alleging K.S. committed acts of family violence; temporary orders (March 2020) suspended K.S.’s access until his release and completion of a psychological evaluation.
K.S. was incarcerated on separate charges (protective-order violation, stalking, criminal trespass); he was later convicted of stalking and continuous violation of a protective order and sentenced to six years, plus other shorter sentences.
At the final hearing A.C. sought to bar K.S. from all access until he completed a mental evaluation; she testified she believed K.S. may have a mental illness and sought attorney’s fees of about $3,009.82.
The trial court found K.S.’s incarceration and the protective order were a material and substantial change, modified access to allow one phone call per child per week upon K.S.’s release, terminated current child-support obligation due to incarceration, confirmed arrearages, and awarded A.C. $3,000 in attorney’s fees.
K.S., acting pro se, appealed raising five issues: (1) failure to interview the older child in chambers, (2–3) legal/factual sufficiency and denial of access, (4) denial of a bench warrant, and (5) attorney’s-fee award.

Issues

Issue	Plaintiff's Argument (A.C.)	Defendant's Argument (K.S.)	Held
1. Failure to interview child in chambers under Tex. Fam. Code §153.009	Interview not required because conservatorship and residence were not at issue in the modification	Trial court erred by refusing K.S.’s request to have A.A.S. (age 13) interviewed in chambers	Even if interview was required, any error was harmless; no reversible harm shown; issue overruled
2. Legal sufficiency that a material and substantial change occurred	K.S.’s incarceration, convictions, protective order, and suspected mental illness constituted a material and substantial change warranting modified access	Evidence insufficient; no family-violence finding; cannot remove access after naming K.S. possessory conservator	Trial court had sufficient evidence of material change and acted within discretion to limit access (weekly phone calls upon release); issue overruled
3. Factual sufficiency/denial of any access to children	Limitation appropriate for children’s best interest given circumstances	Trial court erred by denying K.S. all access	Court found trial court reasonably limited access based on best interest and evidence; issue overruled
4. Denial of bench warrant / due process	Denial proper given inmate’s burden to justify transport	Denial violated K.S.’s right to be heard; he requested transport for the final hearing	Trial court did not abuse discretion; K.S. failed to show the Z.L.T. factors justified a bench warrant; issue overruled
5. Award of attorney’s fees	A.C. requested reasonable fees; trial court awarded $3,000	K.S. asks this court to vacate the fee award and award him $500 for appeal expenses	K.S. waived appellate complaint by failing to brief or cite authority or record; fee award affirmed

Key Cases Cited

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (definition and scope of abuse-of-discretion review)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal sufficiency review)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (nonexhaustive best-interest factors for custody)
Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006) (burden on movant to prove material and substantial change)
In re Z.L.T., 124 S.W.3d 163 (Tex. 2003) (factors for granting bench warrants for incarcerated parties)
In re D.I.B., 988 S.W.2d 753 (Tex. 1999) (harm analysis when court fails to interview child under §153.009)