North Texas Family Law Blog : Dallas Divorce Lawyer & Attorney : Verner & Brumley Law Firm : Serving Dallas, Plano, Fort Worth, Texas

When parents are divorced, almost invariably the children stay together if there is more than one minor child. In other words, if one parent has custody of one of the children, that parent almost always has custody of all the children. As the Third Court of Appeals wrote in Stoufflet v. Stoufflet, "There is a long line of jurisprudence in Texas that supports keeping siblings together in the same household absent clear and compelling reasons for separating the children." But once in a while, a court will separate siblings.

Stoufflet is one of those cases. The facts of the case are awful. There were three children, a daughter age 15 and two sons, age 12 and 9, as of the date of the court of appeals' decision. The mother said she left the father after she discovered the youngest child viewing sadomasochistic pornography on a laptop the father gave the child. The mother said she found both sadomasochistic pornography, as well as pornography involving bestiality, on the family desktop computer. The father admitted he viewed sadomasochistic pornography but denied viewing pornographic bestiality. He said he had attempted, but failed, to erase the images from the computer memories.

During the weeks and months following the separation, the mother claimed that the children began to recover memories of abuse by the father. This abuse was said to include choking, pushing, hitting and kicking the children; sexually abusing the two boys; physically and sexually abusing family pets in front of the children; drugging and sexually abusing the mother while she was unconscious; and torturing and killing two young boys in front of two older children and their paternal grandmother. The father denied all allegations of abuse.

Although the testimony at trial was conflicting, much of it concerned the mother's state of mind. The court of appeals observed:

The trial court heard evidence that all three children were harmed by their mother's paranoid delusions and by her practice of speaking ill of the father in front of the children. . . .  The trial court also heard testimony from [the youngest child's] therapist that [the youngest child] needed to be immediately removed from the continuing allegations that permeated his mother's home.

The court of appeals affirmed the trial court's decision that the father should have custody of the youngest child and the mother custody of the older two children:

Based on the evidence before it, the trial court could have reasonably concluded that [the youngest child] would face future emotional danger if he continued to live with his mother and siblings whereas [the older children] would face future emotional danger if they were removed from their mother's care, and that the only way to serve the best interests of all three children was to separate them. Therefore, we conclude that the trial court could have found clear and compelling reasons to separate the children and we overrule [the mother's] first point of error.

One hopes these children will recover from this ordeal.

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The San Antonio Court of Appeals affirmed a trial court's dismissal of all claims in a divorce case except for the granting of the divorce itself. The trial court did not consider conservatorship, possession and access, child support or property division. The trial court stated that it lacked subject-matter jurisdiction over these claims because the wife and child lived in Italy and the parties' property was "not located within the court's jurisdiction."

The court of appeals affirmed the trial court's ruling. But the court of appeals discussed the case in terms of personal and subject-matter jurisdiction when it really was discussing "status" jurisdiction. What is status jurisdiction? A state always has jurisdiction to determine the marital status of its residents, even when a resident's spouse cannot be located or served. This principle holds true even though the court has no jurisdiction to divide marital property, adjudicate custody disputes, award alimony, or require the payment of child support. Because a court might not have the power to grant all relief sought or needed in a divorce case, the case is said to be "divisible."

The "divisible divorce" is rooted in a hoary old United States Supreme Court case called Pennoyer v. Neff, 95 U.S. 714 (1878). The Texas Supreme Court most recently applied the doctrine in Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998), cert. denied, 525 U.S. 1067 (1999), where the husband moved to Texas to file for divorce while the wife remained in California. The Texas Supreme Court held that the trial court had jurisdiction to grant the husband a divorce but not to divide the parties' property.

Thus, the San Antonio Court of Appeals reached the correct result (assuming that Texas had no jurisdiction over any of the parties' property, including intangible property such as a bank account), but the opinion might have been more clear had the court analyzed the case in terms of status jurisdiction and the divisible divorce.

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The courts have made it clear that parents have a fundamental right to custody of their children.  For this reason, grandparents sometimes are denied visitation with their grandchildren when their child - the children's mother or father - dies.  But what happens when the parents are divorced and the parent who had custody of the children dies? 

The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies - unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children's welfare.

This ruling came about when a custodial mother died.  The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas.  The maternal grandparents filed suit to obtain legal custody of their grandchildren.  The father filed a petition for writ of habeas corpus to obtain custody of his children.

The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is "a serious immediate question concerning the welfare of the child."  The grandparents argued that the children should have remained "with the people who can provide them the most comfort:  their grandparents and their nanny."  But the San Antonio Court ordered the children returned to their father.  It held that "merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child's welfare in the habeas corpus context."

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