Case Study – When Child Custody Modifications Must Happen!

A Father Fights to Modify a Prior Custody Order to Give His Son A Better Future

It was a normal Wednesday as Drew waited in the carpool line to gather up Dean, his six-year-old son.

Drew and Lana had divorced two years ago and had agreed to a joint conservatorship with an equal child possession schedule.

The divorce decree designated Lana as the parent with the right to designate Dean’s primary residence in Tarrant County.

Ms. Washington, Dean’s teacher, saw Drew in line and walked briskly towards his car.

“Dean isn’t here. In fact, he’s no longer a student at Ridgemont,” she said.

“Lana unenrolled him and is transferring him to Lincoln in the Arlington School District.”

Drew felt his pulse quicken and mind race as he maneuvered from the carpool line and back towards his home, two blocks away.

Lana Had Issues

Lana has been difficult since the divorce, failing to communicate with Drew and focusing more on her new marriage than Dean.

She married Oslo, the man she’d met during her marriage to Drew, but wedded bliss soon soured.

Lana moved four times in 18 months and continued her career as a flight attendant which required her to be away days at a time.

When Lana’s rebound marriage failed, she was in free-fall.

True to form, Lana didn’t tell Drew the marriage had failed and that she would be moving to Arlington.

Drew just pulled into his driveway when he received a text from Lana: “You can pick-up Dean tonight at 1716 Hawthorne Street.”

Lana’s new apartment was 30 minutes away.

Suddenly, the quick drive or walk to Ridgemont had turned into a 90 minute slog through traffic to get Dean to and from school on Drew’s days of possession - and how long would this new arrangement last before Lana moved again?

Drew Had Enough

When negotiating their divorce, Drew and Lana talked about Dean’s education and both agreed Dean should enroll at Ridgemont.

It was a good school, near Drew’s home that he owned, and Dean had gone to Pre-K there.

At first Lana upheld her end of the agreement, but other things in her life soon took on greater importance.

Lana was totally within her rights under the divorce decree to move with Dean; Drew just didn’t know it would be a recurring event!

As to educational decisions, the decree gave each parent: “The independent right, after consultation with the other parent conservator, to make decisions concerning the child's education.

Simply put, in a divorce decree the word “independent” gives each parent full authority to make a particular decision.

Lana apparently didn’t choose to read the words after consultation with the other parent conservator.

Drew had worked hard to get Dean the assistance he needed at Ridgemont and had developed relationships with Dean’s teachers.

Drew couldn’t sit by and watch as Lana upended Dean’s life without giving much thought to his needs.

Carefully Considering His Options

Drew called us at Schreier and Housewirth Family Law the following day.

He had read our online reviews, studied our website, and appreciated getting to speak with me on his first call to the office.

I set up a Zoom to visit with Drew and listened closely as he explained the situation and his concerns for his young son.

I explained to Drew that a modification of custody case is not a “re-do” of the divorce; you have to show a material change of circumstances since the divorce was finalized.

Given that Lana was designated primary conservator and was acting within her rights, I told Drew the case was a 50-50 proposition.

Filing for modification of custody is a big undertaking and I want my clients to enter the fray with eyes open.

To this end, I asked Drew to consider his case from a cost-benefit perspective.

Cost benefit in family law goes like this: “Drew, knowing your chances of success are 50-50 and your financial investment in an attempted modification of custody is going to be between $5,000 and $10,000, is this a good investment of your resources?” I asked.

Drew needed time to think and we ended our call so he could sleep on the assessment I’d given him.

Two days later, Drew gave me a call.

“These years are critical for Dean,” he said. “If I don’t give him a chance at a stable home and quality education, I’ll always regret it.”

To get Dean back to Ridgemont, I knew time was critical; every day that passed weighed in Lana’s favor.

“Let’s get your affidavit prepared and run this through as a request for extraordinary relief” I said.

A well-crafted affidavit works wonders at the courthouse; Drew did a rough draft and I added the polish.

We were ready to go downtown.

Luck is Where Preparedness Meets Opportunity

Judge Quisp was wrapping up the morning docket and preparing to go into one of his “high-level meetings in chambers” that would take the rest of the morning.

Quisp has known me for 15 years and knew I’d be organized and quick with my presentation of the emergency order.

He motioned me forward and asked to read the application we’d filed.

“Housewirth,” he said, “You’d better go buy a lottery ticket today. I’ll sign your order but I want this set on the court’s docket without delay.”

Duly warned, I set a temporary orders hearing, alerted Angela my process server, and called Drew on my cell.

“Quisp has us on a short leash,” I said, “We need to get our ducks in a row for court next week.”

Drew had never been involved with court before and needed direction and assurance from me to feel prepared.

On a Saturday, Drew’s day off, we scheduled another Zoom to game-plan for court.

“This Judge doesn’t know you,” I explained; “He’s trying to figure out who’s in this fight for the right reasons.”

We prepared an outline of Drew’s testimony, anticipated Lana’s counterpoints, and reviewed the order of interrogation: direct, cross, re-direct, re-cross.

Drew was confident and prepared.

Then, we got lucky.

Drew and I met at the courthouse and assumed our position on the back benches like pigeons on a wire.

Our case was set at 9:00 a.m. and I asked Drew to patrol the hallway for Lana.

No show.

I double-checked the citation return just to confirm Angela had done everything right getting Lana served with a citation and notice of hearing.

Rest assured, she had.

Honorable Quisp made us wait an hour to give Lana a chance to show before entering a default temporary order against her.

At 10:00 a.m., Drew and I approached the Judge’s bench and ran through our testimony about why temporary orders were in Dean’s best interest.

I had the orders I wanted entered already typed and ready to slide under Quisp’s nose for signature - done.

Dean would re-enroll at Ridgemont the next day.

Drew and I had made it to basecamp, but Drew wanted to get to the top of the mountain - we needed to set a final trial to change conservatorship, stop Drew’s child support, and revise the possession order.

Family court dockets are long and full, so we set our trial on the first available date - six months away!

Every Day is a Win for Drew and Dean

As expected, Drew was disappointed by the long wait, but I asked him to find the silver lining: “Every day that Dean is at Ridgemont, succeeding in school and developing connections, is a day in your favor,” I explained.

Strangely, Lana gave Drew some lame excuse about not understanding she was due in court for the temporary orders hearing and did nothing during the intervening six months to seek a rehearing.

Lana’s inattention to her court papers was a break for us and we continued to build momentum heading towards final trial.

Drew could use this six-month wait to his advantage.

Here’s what I told him: “Document everything: report cards, teacher interactions, school activities, and build relationships with Dean’s teachers, let them know who you are and that you’re invested.

As for Lana, screenshot her testy, immature text messages, calendar her trips out of town, make a timeline of key events.”

The Opposition Appears

A month later, Marsha an attorney with the Brady law firm appeared on Lana’s behalf.

I knew Marsha and respected her as a worthy advocate who would make a strong case for Lana.

We traded the usual discovery requests just to identify potential witnesses, exchange documents and avoid any surprises at trial.

I knew Marsha and Lana hoped to get lots of mileage out of what I call “the mom presumption.”

Preparing for Trial

“A good case isn’t built overnight,” I told Drew.

“In fact, if you’re trying to put a case together the week before trial, you’re in bad shape. You need to make a concerted effort beginning 60 days prior to trial.”

Drew had taken my advice and gathered lots of evidence that would help us at trial.

In my family law office, we use a cloud-based practice management system that allows clients to directly upload information to their file.

Drew had been consistently uploading report cards, e-mails, social media posts, and other morsels of note.

It was time for us to “sharpen the blade,” as I say and organize our case into a brisk, compelling presentation that would provide Judge Quisp meaningful details without boring him to tears.

We filed our requested relief at trial and index of exhibits as with a Zoom hearing, everything needs to be organized just right and easily accessible.

Now it was time to prepare Drew’s testimony.

Like a book, movie, or even a podcast, a family law case is a story complete with a plot, subplot, heroes and villains.

By now, I knew Drew well and knew exactly how to cast him in our little story.

Drew’s testimony would emphasize his maturity, stability, insight, and his willingness to place Dean ahead of his own aspirations.

“I want Quisp to see you as authentic, you’re here for Dean, not to exact some kind of revenge on Lana - it’s about that boy, not her,” I said.

“When Marsha questions you, she’s going to try and get under your skin, throw you off message,” I said.

“Don’t let her.”

I would never let a client go into court without answering this question: “What’s the worst thing SHE is going to say about you?”

Family law is anything but black and white and clients have to look at their own faults and prepare for them to be exposed in court.

Drew and I discussed his weak spots like the time Dean got ant bites at his house and the month Drew fell behind on his support when he’d changed jobs.

“Judge doesn’t expect you to be perfect; acknowledge things, explain how you’ve resolved them and grown,” I said.

We were ready.

“Get some rest, eat, login to the hearing 15 minutes prior to make sure your technology is good,” I told Drew.

Trial

Drew filed for the modification of custody so he would go first in the order of presentation.

We rolled through our case, following the outline of testimony we had prepared.

Then it was Marsha time.

She attacked with the usual “battle of the sexes” themes, insinuating it was Drew’s new wife, Jan, who cared for Dean and that Drew was just trying to “take” Dean from Lana because she had cheated on him with the now-departed Oslo.

Having been well-prepared, Drew maintained his composure and continued to deflect the interrogation back to Dean and his needs.

Lana’s presentation was just a little different.

Under Marsha’s examination, she appeared spoiled, entitled, and just a little smug in her expectation that custody would remain with her.

In my cross-examination, I got Lana to admit she had no intentions of changing her work schedule to meet Dean’s needs and that she’d missed the last two teacher-parent conferences for reasons unknown.

Moreover, Lana was in another relationship and had moved just weeks before trial.

“Did you think about Dean and his school needs before selecting an apartment five minutes from the airport?” I asked.

“He’s young. He can adjust.” Lana replied.

Quisp took off his spectacles and rubbed his eyes; his signature move when he’s heard enough testimony and is ready to rule.

“I’ll take this case under advisement and have you a ruling by the end of the week. You’re dismissed.” He said.

The Road Ahead

I never talk about cases as “win” or “lose” - it just doesn’t feel right to me.

After all, children only have two parents and when court is over, they’re the ones who have to find the way forward for their children and themselves.

Instead, I might say, “We got a favorable result.”

Judge Quisp appointed Drew as the joint managing conservator with the right to designate Dean’s primary residence and the exclusive right to make educational and medical decisions on Dean’s behalf.

Lana got the expanded standard possession order and was ordered to pay Drew nominal child support.

“Good job, Drew.” I said. “But be careful, Lana is going to be angry and looking for ways to make you fail. Don’t fall into her trap.”

My parting words to Drew were this:” You and Lana can either work together to give Dean the happy childhood you know he deserves or she can continue her battle of anger and resentment and make his childhood a nightmare.”

As they say, “when one chapter closes, another begins.”

Drew hopes Dean’s next chapter will be his best yet.

“Call me if you need me,” I said to Drew, “and I hope that you don't!”

Schreier & Housewirth Family Law

1800 West Bowie Street, Suite 200-E
Fort Worth TX 76110

(817) 753-8565

Gregory L. Housewirth is a Board-Certified Family Law Specialist practicing in Fort Worth Texas. With 30 years of family law experience, Mr. Housewirth has represented hundreds of clients in divorce, custody, CPS, modification, and grandparent cases. In addition, Mr. Housewirth is a qualified family law mediator and a member of Collaborative Law Texas, a practice group dedicated to promoting collaborative divorce in Texas.

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