Houston Father Wins Custody Appeal

Revenge and inconvenience are not legal reasons for modifying a child custody order from a Woodlands Divorce. Your Woodlands Divorce Attorney must prove the modification is in the best interests of the child as well as the existence of a material and substantial change since the previous order was issued. Exactly what a “material and substantial” change means is what judges interpret on a daily basis, but a recent case reminds us that revenge and inconvenience are not material and substantial. Speak with a Woodlands Divorce Attorney today at (832) 592-7913 if you need assistance with your child custody modification.


On November 6, 2007, Mother filed a petition to modify the child custody arrangement. Mother’s petition to modify followed Father’s earlier petition for enforcement and access after Mother denied him access to their child. The judge ruled for Father on his petition for enforcement and access.

In her later petition, Mother alleged that K.T.W.’s circumstances had materially and substantially changed since the entry of the previous order. She requested that Father’s “terms and conditions for access to and possession of the child be modified… to reflect visitation in regard to the over 100 mile visitation,” and that, since Father resided in Houston, he should “be responsible for pickup and return for visitation of the child.” Mother further pleaded that Father’s “change of address had caused [her] to incur increased costs.” Father answered and denied that there had been any “change of circumstances which would be grounds for any modification of the present Orders regarding access and possession.”


At the trial court level Mother won her case and the judge modified custody to restrict Father’s access to his child. The Father appealed the ruling.

On appeal, Father claimed the trial court abused its discretion in signing the modification order because the record is devoid of evidence that the modification order was in the best interest of the child.

Pursuant to the modification order, the trial court reduced K.T.W.’s visitation with Father to only one weekend per month. To support the change, the trial court found the limitation was in K.T.W.’s best interest because of the “distance and travel time” from Mother’s residence to Father’s residence. The record of the hearing, however, shows that Father had lived in Houston continuously since 2002, when K.T.W. was born. Moreover, while Mother noted that she had moved to Allen from McKinney, Texas prior to the hearing, she agreed the move actually reduced the distance between her and Father. Mother also testified regarding alleged hardships in weekend travel and scheduling K.T.W.’s Taekwondo classes, but her testimony showed the Taekwondo lessons had been successfully rearranged to accommodate the visitation schedule. There is no other evidence regarding any extracurricular, sports, or school-related scheduling conflicts or difficulties. Mother acknowledged that the only change in K.T.W.’s circumstances since the entry of the previous order was that he had grown older. As for the “sporadic and unpredictable behavior” noted in the trial court’s findings, the evidence showed that Father had been late to pre-arranged pick-ups on two occasions, and that on each occasion he attempted, without success, to contact Mother to update her on the status of his arrival.

“The Texas Legislature has specifically stated that it is the public policy of the state to ‘encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.’” “To achieve this end, the legislature established a presumption that a standard possession order provides the reasonable minimum possession of a child for a parent named as a joint managing conservator, as in the case here, and such order is in the best interest of the child.” Given this policy and the absence of any evidence to support a finding that it was in the best interest of K.T.W. to limit his weekend contact with Father to only one weekend per month, the Court of Appeals concluded the trial court abused its discretion in modifying the possession and visitation provisions of the previous order.

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue call (832) 592-7913 to speak with a divorce lawyer in The Woodlands, TX today and protect your rights.