Originally published by Kelly McClure.
In an ideal situation, child custody may be resolved by agreement, potentially following mediation. In some cases, however, Texas child custody cases become long protracted affairs with disputes that last for years.
A father recently challenged an order that required him to participate and family therapy and restricted his access to the children if he failed to do so. The parents had engaged in significant litigation regarding possession and access of their four minor children since their divorce. They entered into a Mediated Settlement Agreement in December 2019 that stated the oldest child would live with the father and the mother would have a modified possession order until Children 4 Tomorrow (“C4T”) conducted an assessment regarding parental alienation. They also agreed they would mediate again following the assessment.
The trial court issued an order requiring each party to cooperate with C4T and to follow their policies and recommendations. The order also required the parties to mediate within 30 days of the assessment.
The C4T assessment was completed on March 30, 2020. At some point, the father took the oldest child to live with the mother. The mother and amicus attorney moved to compel family therapy. At the hearing, the mother’s attorney designated the person with C4T who completed the assessment as the mother’s expert and the father’s attorney stipulated she was an expert.
The father testified he believed C4T was unfair to him. He said he was willing to attend therapy with someone else, but not C4T.
The trial court issued an order directing the family members to attend family therapy and prohibiting the parents from interfering with the children’s attendance or with each other’s relationship with the children. The court incorporated the recommendations from C4T’s assessment into the order. The order provided that a parent who did not comply would lose visitation and communication with the children for 15 days, with that period increasing in 15 day periods for each offense.
The court also included status conferences in the order. Both the father and his attorney missed the first conference. The hearing included testimony the father had not been attending therapy. There was also testimony that the mother and oldest child had not been getting along and the other children were more withdrawn. The court ordered that the father would not have visitation or communication with the children except in the therapist’s presence for 15 days.
The father attended the second status conference with new attorneys. The mother’s attorney designated the C4T assessor as the expert, and the father’s attorney argued she could not be the mother’s expert.
After hearing testimony that the father had not been attending therapy and was engaging in alienating behavior, the court found he committed a second offense and ordered the father have no visitation except in the therapist’s presence for 30 days.
The father then petitioned for a writ of mandamus to compel the trial court to vacate its orders. The father argued the trial court abused its discretion by prohibiting his possession and access to the children.
He argued the C4T assessor was not qualified under the statute to be a parenting coordinator. He argued in the alternative that, even if she were qualified, the statute does not allow the parenting coordinator to make recommendations regarding possession and access. He argued the court abused its discretion when it appointed her parenting coordinator and adopted her recommendations. He also argued that the possession order was improperly modified without a finding of a material and substantial change in circumstances when the court implemented C4T’s recommendation for consequences of failing to follow the treatment plan.
At the second status hearing, the father had argued that the C4T assessor was not qualified to make the recommendations that formed the basis of the order, so it was invalid. He also argued that there had not been a finding that modification of the possession order was in the children’s best interest. He had not, however, asked the trial court to modify or vacate the order based on these arguments before filing his petition for a writ of mandamus.
A party seeking a writ of mandamus must show both that the trial court abused its discretion and there is not an adequate remedy through appeals. Generally, the party must have requested an action from the court and received a denial. The appeals court therefore found the father had not shown he was entitled to a writ of mandamus because he had not asked the trial court to vacate or modify its order.
Unfortunately, this case was decided on a procedural issue. When a family law matter is acrimonious or has highly controverted issues, it is even more important to have the guidance of experienced Texas child custody counsel. Schedule an appointment with McClure Law Group at 214.692.8200.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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