in the Interest of T.E.G., a Child
11-16-00363-CV
| Tex. App. | Sep 15, 2017Background
- Parents C.E.G. (father) and L.E.G. (mother) divorced in 2011; decree gave C.E.G. right to designate the child's primary residence within Harris County and contiguous counties (with exception if mother moved).
- Father moved child, T.E.G., to Mineral Wells (Palo Pinto County) in 2012, later to Spring/Houston area in 2015 for work; mother moved to Fort Worth in 2013.
- Mother filed to transfer and to modify conservatorship in Palo Pinto County in 2016, seeking the exclusive right to designate the child’s primary residence within 100 miles of Palo Pinto County.
- At bench trial, evidence showed father works long hours, travels for work, relied on his girlfriend (Belanger) to care for the child, and both father and Belanger faced pending indictments in Palo Pinto County.
- Trial court found material and substantial change in circumstances and that modification was in the child’s best interest; named parents joint managing conservators and gave mother exclusive right to designate primary residence within 100 miles of Palo Pinto County.
Issues
| Issue | Plaintiff's Argument (L.E.G.) | Defendant's Argument (C.E.G.) | Held |
|---|---|---|---|
| Whether there was a material and substantial change in circumstances to permit modification | Mother argued father’s job, long hours, travel, reliance on Belanger for childcare, and pending indictments of father/Belanger constituted changed circumstances | Father argued the original decree already allowed him to move the child and thus no material change occurred | Court held there was sufficient evidence of material and substantial change; no abuse of discretion |
| Whether modification was in the child’s best interest | Mother argued stability, daily school drop-off/pick-up, and father’s limited time/support made modification in the child’s best interest | Father stressed custodial history and ability to provide care despite work; argued court erred in assessing best interest | Court applied Holley factors and found sufficient probative evidence to support best-interest determination; no abuse of discretion |
| Admissibility of father’s pending indictments | Mother offered indictments as relevant to changed circumstances, parental ability, and home stability | Father argued indictments were irrelevant, improperly character evidence, and prejudicial (no conviction) | Court admitted indictments as relevant to issues presented and not character-conformity evidence; conviction not required; admission not an abuse of discretion (Rule 403 objection not preserved) |
Key Cases Cited
- Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) (trial court has broad discretion in custody matters)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (definition of abuse of discretion)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (factors for determining child’s best interest)
- In re W.E.R., 669 S.W.2d 716 (Tex. 1984) (oral statements by judge not substitute for findings)
- In re A.J.E., 372 S.W.3d 696 (Tex. App.—Eastland 2012) (review standard for modification decisions)
- In re K.L.R., 162 S.W.3d 291 (Tex. App.—Tyler 2005) (pending criminal charges may be relevant to custody issues)
- In re M.R., 965 S.W.2d 51 (Tex. App.—San Antonio 1998) (admission of criminal charges relevant to conservatorship issues)
- Tate v. Tate, 55 S.W.3d 1 (Tex. App.—El Paso 2000) (procedural/standards regarding findings and trial court statements)