Writ of Mandamus in Family Law Cases

On occasion a trial court may abuse its discretion with respect to rulings on family law cases so as to warrant an immediate review by a higher court. This process is called a writ of mandamus against the trial court judge making the incorrect ruling or abuse of discretion.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam). Therefore, the relator must establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence supports the trial court's decision. IKB Indus. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).

Appellate courts do not generally overrule trial court rulings, especially when conflicting evidence are submitted by opposing parties. Such was the case in the recent ruling by the 14th Court of Appeals last February in the case of In Re John W. Small who asked the higher court to compel the presiding judge of County Court at Law No. 1 of Galveston County, to set aside her October 31, 2008 order finding relator in contempt for failing to pay court-ordered temporary spousal support to real party in interest, Murriah S. McMaster, and to to reverse her November 1, 2005 order awarding temporary spousal support to McMaster. Because the trial court did not abuse its discretion, writ of mandamus was denied.

Does Texas Recognize Common Law Marriage?

A common-law or informal marriage can be established by showing the parties

(1) entered into an agreement to become husband and wife;

(2) cohabitated as husband and wife; and

(3) held each other out publicly as husband and wife.

TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).

However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).

In order to constitute a valid informal marriage, it must be established that the parties:

(1) entered into an expressed or implied agreement to become husband and wife,

(2) that such agreement was followed by cohabitation as man and wife, and

(3) that they held each other out professedly and publicly as husband and wife.

TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).

There is, of course, one additional fundamental rule, that in order to establish a valid marriage, the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract. Franklin v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.--Corpus Christi 1981, no writ); Howard v. Howard, 459 S.W.2d 901, 904 (Tex. App.--Houston [1st Dist.] 1970, no writ); Esparza v. Esparza, 382 S.W.2d 162, 166 (Tex. Civ. App.--Corpus Christi 1964, no writ). Villegas v. Griffin Indus., 975 S.W.2d 745, 749-750 (Tex. App. Corpus Christi 1998)

Best Interest of the Child - Texas Child Custody and Visitation

The best interest of the child is the primary consideration in the determining issues of possession and access when it comes to Texas child custody and visitation disputes. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). The trial court has broad discretion in determining possession and access to a child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

If the trial court appoints a managing conservator, it may appoint one or more possessory conservators. Tex. Fam. Code Ann. ' 153.006(a) (Vernon 2002).

With respect to appointing a parent as a possessory conservator, the Texas Family Code provides:

The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.

Tex. Fam. Code Ann. ' 153.191 (Vernon 2002) (emphasis added). The Family Code further provides with regard to the restriction of a parent's access to a child:
The terms of an order that denies possession of 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. Tex. Fam. Code Ann. ' 153.193 (Vernon 2002).

The trial court's determination that access, even restricted access, would endanger the physical or emotional welfare of the child precludes the court from appointing that parent possessory conservator. In re Walters, 39 S.W.3d 280, 286 (Tex. App.Texarkana 2001, no pet.). However, the trial court may appoint a parent possessory conservator if it determines access would not endanger the physical or emotional well being of the child, even though access to the child would not be in the child's best interest. Id.; Hopkins v. Hopkins, 853 S.W.2d 134, 137 (Tex. App.Corpus Christi 1993, no writ). In such cases, the trial court may appoint a parent a possessory conservator and deny that parent any access to or possession of the child, if such restriction is in the best interest of the child. Hopkins, 853 S.W.2d at 137B38; see also In re Walters, 39 S.W.3d at 286 n.2 (stating a limitation that amounts to a denial of access is permissible if it is in the best interest of the child).

In all cases, access, conservatorship and child visitation disputes are always reviewed under the best interest of the child standard. However, divorcing parents can and often do agree to modified access, conservatorship and visitation. Parties are allowed to enter into an agreed visitation and conservatorship agreement. It's best to have a family law or child custody attorney review agreements before entering into such modified custody agreements.