ROMERO v. ZAPIEN
Court of Appeals of Texas, Thirteenth Distrct, Corpus Christi, Edinburg
June 25, 2010
In a recent decision, the Texas Court of Appeals, Thrirteenth District, has reaffirmed many principals of family law as it pertains to child possession and access and child suppport. In its recent ruling in ROMERO v. ZAPIEN, No. 13-07-00758-CV available at http://tinyurl.com/29nwqlr, the appeals court addressed the issues of child support, possession and access, and make up possession and access time when a parent has been wrongfully denied court-ordered access.
Possession and Access
In this case, the court imposed a standard possession order when it granted the divorce. At the time of divorce, the mother and father lived within a few blocks of each other and the father was able to have nearly equal physical possession of the child as the mother had.
Several months after the divorce, the father moved to Florida for a better-paying job. After father moved to Florida thereby lifting the geographic restriction on the mother's exclusive right to determine the primary residence of the child, the mother moved to another county to be closer to her family. The father eventually moved from Florida to the same county in which wife resided and demanded equal physical possession of the child, which is not granted by the standard possession order and was impossible given that the mother and father no longer lived within a few blocks of each other.
Father asked the trial court to modify the possession order and grant him week on-week off possession of the child. The trial court denied the father's request and the father appealed the ruling saying that in denying him a 50-50 possession order, the trial court had limited the amount of time he could spend with the child and thus unconstitutionally deprived him of the ability to parent his child.
In denying his request on appeal, the appeals court noted that parents do have a constitutional right to make decisions regarding the upbrining of their children. However, there is no rule that provides that parents much be granted equal access to the child in order to exercise that right to make decisions. In fact, the Texas Family Code clearly says that parents are not automatically entitled to equal or even nearly equal possession and access time (Texas Family Code Section 153.135).
Because the father did not raise the constitutional issue at the trial level, the appeals court did not review the constitutional argument. Instead, the appeals court analyzed whether the trial court abused its discretion by ordering a possession and access schedule that did not provide equal or nearly equal access to both parents.
When the appeals court analyzes the trial court's actions to determine whether the trial court abused its discretion, the appeals court askes whether the trial court's decision was without reference to existing law or legal principals. The Texas Family Code clearly establishes the notion that parents are not entitled, as a matter of law, to equal or nearly possession and access time with their children. Thus, relying on that statute, the trial court could not be said to have been acting without reference to established legal principals and therefore did not abuse its discretion in not ordering equal or nearly equal access time to each party.
The appeals court did not analyze the constitutionality of this section of the Texas Family Code.