Trial Judge’s Award to Father of Child’s Primary Residence and Educational Decisions Was Supported by Sufficient Evidence

Trial Judge’s Award to Father of Child’s Primary Residence and Educational Decisions Was Supported by Sufficient Evidence


Mother and Father’s 8 year-old son had lived primarily with Mother since he was 2, when she filed for divorce and moved to Dallas. For 6 years leading up to their 15-day divorce trial, Mother was the primary caretaker and Father shared custody under Temporary Orders.


Trial evidence showed ongoing disputes between the parents about parenting, including choice of a pediatrician, how to treat minor medical conditions, overnight guests, travel plans, safety issues, return of the child’s personal items, Mother’s tardiness at possession exchanges, makeup time with their son, and addressing their son’s learning issues. Mother sometimes failed to tell Father about appointments or events until after the fact, and prevented their son from accepting video chats or phone calls from Father. When her possession was disrupted by bad weather, she asked for makeup time, but when Father asked for makeup time, she told him the Temporary Orders did not provide for makeup time. Father berated Mother when she was late for exchanges, recorded their conversations at all exchanges, tracked their son’s whereabouts using an iPad he bought him, and sometimes ignored Mother and her parents when they were at their son’s events.


The trial judge also heard evidence about how Father supported their son’s relationship with Mother. He invited her and her parents to birthday parties in the summer and to celebrate Christmas in Colorado, offered to travel to Dallas to take their son to doctor’s appointments and to pay for a hotel for Mother and their son near the exchange place when a forecasted ice storm might make return to Dallas treacherous. He ensured that their son called Mother during his periods of possession and provided Mother with an itinerary when he traveled with their son. He chose his periods of summer possession to allow Mother to maximize her own time off work during the summer.


Mother made disparaging remarks about Father to their son. She told their son that Father wanted him to move and attend a different school, and their son told father that moving would “ruin my life.” She discouraged their son’s relationship with Father’s fiancé and her son. She thought Father’s encouragement of their son’s summer reading was excessive and described their son’s regression when he is with Father.


A court-appointed custody evaluator administered psychological evaluations, visited the parents’ homes and observed the child with each parent, reviewed educational assessments and spoke to teachers, reviewed the child’s medical records, and sent a behavioral checklist to the parents and school to screen for ADHD. Mother opposed the request for behavioral information and instructed the school not to fill out the forms. She was reluctant to take their son to an optometrist, and she opposed psycho-educational evaluation and occupational therapy evaluations to address concerns about dyslexia and other learning disabilities. The custody evaluator concluded that Father had been an effective advocate for their son’s learning issues and promoted and supported the son’s relationship with Mother.


Mother appealed the trial judge’s award to Father of primary residence and educational decision making. The Court of Appeals affirmed the trial judge’s ruling because sufficient evidence supported it. Father’s involvement in their son’s life, advocacy for his learning differences, and encouragement of his relationship with Mother all promote his best interest. Thus, the trial judge did not abuse his discretion and did not act arbitrarily.

Wright v. Berger, No. 01-18-00964-CV (Tex. App.—Houston [1st Dist.] Apr. 21, 2020, no pet.).

*Any article or blog post is for educational and informational purposes only and is not a substitute for the advice of a licensed Rivers McNamara attorney.



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