Even after a divorce, a material and significant change of circumstances in the lives of parents or their children can justify a modification of a decree regarding the children. If the changed circumstances threaten the best interests of a child, a modification to child custody may be an appropriate course of action.

An example is provided by the recent Texas Court of Appeals case of Kittman v. Miller.

Mother Remarries; A Pattern of Violence Alleged

The mother and father in this case were divorced and appointed joint managing conservators of the children. Several months later, the mother remarried. The father thereafter sought to be appointed the sole managing conservator of the children.

The father contended that the new husband had a history or pattern of regularly committing family violence during the past 14 years and a history or pattern of child, sexual, and physical abuse against his first two wives, a daughter, two adopted daughters, and an extramarital sexual consort.

During the trial, two ex-wives of the new husband testified, citing numerous instances of the use of physical force and threats, but the trial court limited evidence regarding the domestic violence allegedly committed based on the trial court’s interpretation of a Texas statute.

At the conclusion of the trial, the jury found, among other findings, that the final decree of divorce should not be modified to appoint the father the sole managing conservator of the children. The father appealed.

Exclusion of Ex-Wives’ Testimony was Error

The Texas Court of Appeals first noted that the best interest of the child is always the primary consideration in determining issues of conservatorship, possession of and access to a child.

In this case, the jury’s determination turned on the excluded testimony of the two ex-wives. Without their testimony, the mother was able to show that her home with the new husband was a safe, stable and nonviolent household for the children. However, this testimony and the testimony of other witnesses was in stark contrast to the excluded testimony of the ex-wives regarding the new husband’s past violent behavior towards them. Without this testimony, the jury did not have all of the information necessary to fully evaluate the best interests of the children. Further, the new husband’s alleged family violence took place within his marriages and in front of their children, thus providing evidence of a history or pattern of family violence.

This evidence would have provided substantial support for the father’s request that he, not the mother, be named as the sole managing of the children. Thus, the trial court’s error in excluding the ex-wives’ testimony was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment on the modification action. Thus, the decision was reversed and remanded back to the trial court for further proceedings.

Seek Experienced Counsel

If you believe a change in circumstances justifies a decree modification, it is crucial that you speak with an experienced family law attorney who can provide you with sound legal advice. Seek an attorney who will work to find a creative solution to your situation, or, if necessary, take your case to court.

To schedule a consultation with one of our trusted attorneys, contact Vaught Law Firm at 512-342-9980 or send us a message through our online contact form.