349 S.W.3d 717
Tex. App.2011Background
- Clayton Newell and Christina Newell married in May 2003 and have one child, Natalie.
- Temporary orders conditioned Clayton's possession on drug tests funded by Christina.
- Permanent joint managing conservatorship with Christina as primary caregiver; Clayton has scheduled possession.
- Trial evidence showed Clayton previously used drugs and had a sobriety date in June 2009; he passed drug tests in 2009 and 2010 but hair test on a July 2009 day was positive for opiates and cocaine.
- Clayton admitted past alcohol use but claimed no current excess; trial court ordered random drug tests and random alcohol tests concurrent with drug tests, with alcohol tests limited to within 80 hours before possession; Christina pays if test negative; violations trigger modified possession.
- Trial court offered SCRAM device as alternative, which Clayton declined.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by ordering random alcohol testing. | Clayton argues alcohol testing is unsupported. | Newell contends testing is justified by past alcohol issues. | Yes, the alcohol testing order exceeded what was necessary to protect Natalie’s best interests. |
| Whether the scope of alcohol testing (time window) is appropriate to protect best interests. | Clayton asserts the eighty-hour window is overbroad. | Newell contends testing within a broad window ensures safety. | Yes, the timing provision was too restrictive and excessive. |
Key Cases Cited
- In re M.M.M., 307 S.W.3d 846 (Tex.App.-Fort Worth 2010) (abuse of discretion standard in custody disputes; sufficiency considerations relevant to discretion)
- In re W.M., 172 S.W.3d 718 (Tex.App.-Fort Worth 2005) (custody decisions reviewed for abuse of discretion; information sufficiency discussed)
- In re T.D.C., 91 S.W.3d 865 (Tex.App.-Fort Worth 2002) (sufficiency as a factor in abuse of discretion review; remand considerations)
- In re J.E.P., 49 S.W.3d 380 (Tex.App.-Fort Worth 2000) (deviations from standard possession order; factors to consider)
- In re Pierre, 50 S.W.3d 554 (Tex.App.-El Paso 2001) (absence of evidence of drug abuse as basis to modify testing)