This is a local case in which the Court of Civil Appeals again shows that it is nearly impossible to overturn a trial court’s determination of custody. In this case, mom had been primary caretaker of the child since birth, and in fact father showed little interest in the child until the case was filed. The parties had a very contentious separation and divorce, and both parties acted immaturely and engaged in behavior that heightened the difficulties between the two. The gist of the case came down to two things: the mother’s request to relocate to her home state of Wisconsin, since her family had moved back and she had no support group here, and the mother’s denial of four weekday visitations, one of which resulted in the police being called when the father showed up to retrieve the child and would not leave. The trial court found these behaviors outweighed the father’s positive drug test for marijuana, a prior felony for knowingly concealing stolen property and admission of the father that he changed the visitation times on short notice.
The trial court placed more importance on whether the mother would be most cooperative with visitation than who actually raised the child to this point and who was the more appropriate parent. The Court of Civil Appeals panel upheld the trial court’s ruling saying, “Although Mother was the primary caretaker of the child since birth, Father exhibited an enhanced interest in the child’s welfare and demonstrated his willingness to cooperate with any visitation order entered by the court. Father also appeared to be the best custodial parent to foster and encourage visitation with Mother, as the non-custodial parent.”
It is interesting to note that after the entering of this order, the mother filed a Motion to Modify and accused the father of interfering with visitation on multiple occasions, refusing to comply with the trial court’s right of first refusal order, insistence of the father for mother to stay the night with him in order to see the child, and continued use of narcotics. A hearing date was set for 3/31/15 and a status conference was set for 4/14/15. The father failed to appear for the status conference, as well as the deposition that he was served notice of. The father then hired a lawyer and got the case continued. In the meantime, the father allegedly posted a photo of marijuana in a Disney Ziplock baggie which appears to belong to the preschool girl. He also “tagged” a friend in the photo who had a Possession of CDS With Intent to Distribute pending against him. Despite the overwhelming evidence against the father that he had violated the Court’s order of visitation on many occasions, continued to use narcotics, ignored court orders, and hung out with suspected drug dealers, the trial court denied the Modification request saying the Gibbons burden of a permanent, material and substantial change in circumstances was not met.
This case is a perfect example that shows what judge you get, and actual experience in front of that particular judge, are very important determinants of the likely outcomes of individual cases and the development of a trial strategy. So be sure to hire a local and experienced attorney for family law cases such as this one.