My question involves a child custody case from the State of: Texas
Allow me to frame this question by prefacing this by citing some Texas Supreme Court cases, Texas statutes, and giving some background on the matter.
(I will do my best to cite correctly but if I make an error, please let me know so that I may fix the error).
Background:
I filed for divorce and my ex was served.
My ex then made allegations against me, all of which were investigated and closed unfounded, (police could no corroborate her allegations, no arrests made or any pending litigation left open). **my personal theory is that the ex made the allegations to get the knee jerk reaction from the court and have a leg up in the divorce process**.
All investigations into all allegations were closed over a year prior to the final hearing.
Final divorce decree awarded both of us as Joint Managing Conservators.
**I did have an attorney through the entire divorce**
The problem:
The final divorce decree only allots me 4 hours every second and fourth Saturday per month to visit with the children. (8 hours total per month)
The decree also specifies that the visitation must be monitored.
It is my belief that the Judge screwed up royally in this situation. I will back that assertion up with citations of court cases and statutes.
Texas Supreme Court Cases
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 SW 2d 864 - Tex: Supreme Court 1999
"There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. Also, ordinary citizens should be able to rely on the plain language of a statute to mean what it says.[10] Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be." (emphasis added)
Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491-92 (Tex. 2017)
"We construe statutory language de novo. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014). Our goal is to determine and give effect to the Legislature's intent. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). We look to and rely on the plain meaning of a statute's words as expressing legislative intent unless a different meaning is supplied, is apparent from the context, or the plain meaning of the words leads to absurd or nonsensical results. Crosstex Energy Servs., L.P., 430 S.W.3d at 389-90. Words and phrases must be "read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE § 311.011. We construe statutes so that no part is surplusage, but so that each word has meaning. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) ("The Court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous."). We presume "the Legislature 492*492 chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We also take statutes as we find them and refrain from rewriting text chosen by the Legislature. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)." (emphasis added)
From these two court cases, I contend that the trial court is obligated to apply the statutes as they are written without discretion (unless discretion is given within the context of the statute).
Tex Govt Codes
Sec. 311.011. COMMON AND TECHNICAL USAGE OF WORDS. (a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.
(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.
Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.
(3) "Must" creates or recognizes a condition precedent.
(4) "Is entitled to" creates or recognizes a right.
(5) "May not" imposes a prohibition and is synonymous with "shall not."
(6) "Is not entitled to" negates a right.
(7) "Is not required to" negates a duty or condition precedent.
These codes (along with the cited cases) spell out how a court is supposed to read the statute(s).
Other Texas Supreme Court cases (which I will not list because of repetitive nature) state that a court does not have discretion in how it applies statutes.
Tex Fam Code
Sec. 153.251. POLICY AND GENERAL APPLICATION OF GUIDELINES. (a) The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.
(b) It is the policy of this 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.
(c) It is preferable for all children in a family to be together during periods of possession.
(d) The standard possession order is designed to apply to a child three years of age or older.
(emphasis added)
Sec. 153.193. MINIMAL RESTRICTION ON PARENT'S POSSESSION OR ACCESS. The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.
Sec. 153.004. (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.
(c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
(emphasis added to the above statutes)
From the literal reading of those states, we see that the trial court is prohibited in restricting possession (also known as visitation by the Texas OAG) to anyone appointed Joint Managing Conservator.
I will cut it short as not to take up too much space proving the same thing. :wallbang:
I am currently interviewing attorneys to fix this problem.
In my opinion however, it seems that there is some unwritten rule (a secret handshake) between attorneys and judges (who are also attorneys).
I never seem to get a straight answer when I bring up these points.
So I pose this question to the people here.
Am I reading these correctly?
Is it possible that the judge screwed up in limiting my visitation (possession) of the children OR appointing me Joint Managing Conservator if he believed that I was a threat to the children (however that would require proof to rebut that presumption and NO proof was ever presented)?
What options are open to me (aside from going for modification, which I am already doing).
Appeal is NOT an option as the time has expired.
I hope that makes sense
Thank you
Allow me to frame this question by prefacing this by citing some Texas Supreme Court cases, Texas statutes, and giving some background on the matter.
(I will do my best to cite correctly but if I make an error, please let me know so that I may fix the error).
Background:
I filed for divorce and my ex was served.
My ex then made allegations against me, all of which were investigated and closed unfounded, (police could no corroborate her allegations, no arrests made or any pending litigation left open). **my personal theory is that the ex made the allegations to get the knee jerk reaction from the court and have a leg up in the divorce process**.
All investigations into all allegations were closed over a year prior to the final hearing.
Final divorce decree awarded both of us as Joint Managing Conservators.
**I did have an attorney through the entire divorce**
The problem:
The final divorce decree only allots me 4 hours every second and fourth Saturday per month to visit with the children. (8 hours total per month)
The decree also specifies that the visitation must be monitored.
It is my belief that the Judge screwed up royally in this situation. I will back that assertion up with citations of court cases and statutes.
Texas Supreme Court Cases
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 SW 2d 864 - Tex: Supreme Court 1999
"There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. Also, ordinary citizens should be able to rely on the plain language of a statute to mean what it says.[10] Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be." (emphasis added)
Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491-92 (Tex. 2017)
"We construe statutory language de novo. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014). Our goal is to determine and give effect to the Legislature's intent. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). We look to and rely on the plain meaning of a statute's words as expressing legislative intent unless a different meaning is supplied, is apparent from the context, or the plain meaning of the words leads to absurd or nonsensical results. Crosstex Energy Servs., L.P., 430 S.W.3d at 389-90. Words and phrases must be "read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE § 311.011. We construe statutes so that no part is surplusage, but so that each word has meaning. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) ("The Court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous."). We presume "the Legislature 492*492 chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We also take statutes as we find them and refrain from rewriting text chosen by the Legislature. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)." (emphasis added)
From these two court cases, I contend that the trial court is obligated to apply the statutes as they are written without discretion (unless discretion is given within the context of the statute).
Tex Govt Codes
Sec. 311.011. COMMON AND TECHNICAL USAGE OF WORDS. (a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.
(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.
Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.
(3) "Must" creates or recognizes a condition precedent.
(4) "Is entitled to" creates or recognizes a right.
(5) "May not" imposes a prohibition and is synonymous with "shall not."
(6) "Is not entitled to" negates a right.
(7) "Is not required to" negates a duty or condition precedent.
These codes (along with the cited cases) spell out how a court is supposed to read the statute(s).
Other Texas Supreme Court cases (which I will not list because of repetitive nature) state that a court does not have discretion in how it applies statutes.
Tex Fam Code
Sec. 153.251. POLICY AND GENERAL APPLICATION OF GUIDELINES. (a) The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.
(b) It is the policy of this 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.
(c) It is preferable for all children in a family to be together during periods of possession.
(d) The standard possession order is designed to apply to a child three years of age or older.
(emphasis added)
Sec. 153.193. MINIMAL RESTRICTION ON PARENT'S POSSESSION OR ACCESS. The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.
Sec. 153.004. (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.
(c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
(emphasis added to the above statutes)
From the literal reading of those states, we see that the trial court is prohibited in restricting possession (also known as visitation by the Texas OAG) to anyone appointed Joint Managing Conservator.
I will cut it short as not to take up too much space proving the same thing. :wallbang:
I am currently interviewing attorneys to fix this problem.
In my opinion however, it seems that there is some unwritten rule (a secret handshake) between attorneys and judges (who are also attorneys).
I never seem to get a straight answer when I bring up these points.
So I pose this question to the people here.
Am I reading these correctly?
Is it possible that the judge screwed up in limiting my visitation (possession) of the children OR appointing me Joint Managing Conservator if he believed that I was a threat to the children (however that would require proof to rebut that presumption and NO proof was ever presented)?
What options are open to me (aside from going for modification, which I am already doing).
Appeal is NOT an option as the time has expired.
I hope that makes sense
Thank you
Civil Laws in Texas Dealing with Conservatorship and Visistation
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