Rahmatullah Basha Syed v. Khadija Masihuddin, 2017 Tex. App. LEXIS 4562

Background

Syed and Masihuddin remarried (second marriage 2012) after an earlier divorce; they have two daughters (U.K., b. 2008; U.H., b. 2013).
Syed left the family in 2007 (while pregnant with U.K.), had limited contact until 2012, then again separated in Dec. 2012 and had almost no contact with the children from Dec. 2012 to May 2015.
Temporary orders eventually granted Syed supervised then unsupervised Saturday visitations; tensions and incidents occurred when he attempted to exercise visits (including police involvement and disputes over children reluctant to go with father).
Trial evidence showed Syed lived in a one‑bedroom apartment, had limited child care experience, and lacked supplies for overnight stays; Masihuddin testified to concerns about hygiene, care, and the children’s special needs (U.H.’s heart defect, breastfeeding, toileting issues for U.K.).
The trial court named Masihuddin sole managing conservator, Syed possessory conservator, deviated from the statutory Standard Possession Order (SPO) and limited Syed to Saturday possession following the 1st, 3rd, and 5th Fridays (10 a.m.–6 p.m.), with no overnights.
Trial court later issued findings under Family Code §153.258 listing reasons for deviation (e.g., neglectful pattern, inadequate care/hygiene, failure to support children, dishonesty with law enforcement).

Issues

Issue	Syed's Argument	Masihuddin's Argument	Held
Whether the trial court abused its discretion by deviating from the Standard Possession Order (SPO) and restricting visitation more than necessary	Deviation was more restrictive than necessary; insufficient evidence supports limiting visitation to daytime Saturdays and denying overnights/holidays	Deviation justified by father’s pattern of limited contact, inadequate care, poor housing, and incidents showing risk or neglect	Court affirmed: trial court did not abuse its discretion; evidence supported deviation
Whether specific factual findings supporting deviation are unsupported by the record	Many of the trial court’s factual findings (neglect, failure to care) lack sufficient evidentiary support	Trial court credited Masihuddin’s testimony and factual findings fell within its fact‑finding authority	Court held findings were supported by evidence or were within factfinder’s credibility determinations; no reversible error
Whether some findings relied on improper considerations (religion, child support arrears, public benefits, or family‑violence‑related services)	Some findings impermissibly considered religion, benefits, or past support as grounds to limit access	Court relied on permissible factors (child safety, history of neglect, living conditions, lack of parental involvement) and did not condition possession on payment	Court rejected Syed’s challenge; improper considerations did not require reversal given overall permissible grounds for deviation

Key Cases Cited

Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) (trial court has wide latitude in child‑custody decisions)
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (abuse‑of‑discretion test explained)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (sufficiency review and fact‑finder deference)
In re J.A.J., 243 S.W.3d 611 (Tex. 2007) (trial court’s continuing jurisdiction to modify conservatorship orders)
In re K.S., 492 S.W.3d 419 (Tex. App.—Houston [14th Dist.] 2016) (rebuttable presumption regarding supervised visitation when credible evidence of neglect exists)
In re M.M.M., 307 S.W.3d 846 (Tex. App.—Fort Worth 2010) (consideration of sufficiency in abuse‑of‑discretion context)
Mauldin v. Clements, 428 S.W.3d 247 (Tex. App.—Houston [1st Dist.] 2014) (standard for custody/possession review)
Coleman v. Coleman, 109 S.W.3d 108 (Tex. App.—Austin 2003) (deference to trial court’s observations of witness credibility)
Niskar v. Niskar, 136 S.W.3d 749 (Tex. App.—Dallas 2004) (legal/factual sufficiency relevant to abuse‑of‑discretion review)