An excerpt from the >9000-word In the Interest of O.S. & U.S., decided Thursday by Texas Court of Appeals Justice Wade Birdwell, joined by Justices Elizabeth Kerr & Dabney Bassel:
Appellant A.H. (Mother) and Appellee I.S. (Father) divorced in 2014, and they were appointed as joint managing conservators of their two sons—O.S. (Owen) and U.S. (Uriah)—with Mother having the exclusive right to determine the children’s primary residence. In the years that followed, Mother remarried, then after separating from her new spouse, she and the children began living with L.W.B. (Partner). {Although Partner self-identified as a female, multiple witnesses—including both Partner and Mother—testified that “legally, [Partner’s] a male.” We therefore use male pronouns for Partner to avoid confusion.}
Both Mother and Father petitioned to modify the custody order based on the changed circumstances, and the trial court—after hearing evidence of each parent’s alleged misdeeds, of Owen’s medical issues, of Uriah’s educational arrangements, and of Partner’s background and social-media posts—found that the children’s best interest would be served by giving Father the exclusive right to decide their primary residence, their education, and their invasive medical procedures.
Mother challenges this modification …. Her primary complaint is that there was insufficient evidence to support the modification because no reasonable factfinder could have believed Father or taken Partner’s social-media posts seriously. Therefore, Mother reasons, the modification must be attributable to the trial court’s unconstitutional “punishment” of her based on Partner’s transgender identification and exercise of his right of free speech. But such allegations merely seize on a tangential hot-button issue in an attempt to avoid the trial court’s credibility determinations. The trial court heard conflicting evidence of two imperfect parents, and it acted within its discretion based on its assessment of the witnesses’ credibility….
The evidence showed that
- in 2015, Mother began a relationship with Partner, and he began living with her and the children;
- in 2016, during a “break” in Mother’s relationship with Partner, Mother married Husband [not Father -EV], and she and the children moved in with Husband;
- in 2017, Mother and Husband separated, and she moved out with the children; and
- later in 2017, Partner moved in with Mother and the children….
[T]he parties vehemently disputed (1) Mother’s failures to surrender possession of the children; (2) the children’s medical incidents and education; and (3) Partner’s influence on the children. [For more on issues 1 and 2, see the full opinion; I will focus here on aspects of issue 3. -EV] Specifically, Father pointed to Partner’s background, his treatment of the children, his alleged instability, and his social-media posts.
[a.] Background
Partner was a biological male who identified as a female. He openly admitted that he had been involved in the sex industry in the past, stating that, before his relationship with Mother, he had spent approximately “[a] year and a half or two years” working as a prostitute through Craigslist advertisements. Around that same time, Partner had performed live online “stripping” shows from his home. But Partner noted that he had stopped such work before he began his relationship with Mother and that Mother had indicated they could not live together if Partner resumed prostitution.
Mother, for her part, questioned the sincerity of Father’s concern about Partner’s work in the sex industry. She elicited testimony that she and Father had met at a BDSM event and that Father had worked with a filmmaker who had produced BDSM videos. In fact, Mother noted, a least one of Father’s other children had been involved in a political film made by the filmmaker, and although the film had not been sexual, it had been advertised on the filmmaker’s website alongside the filmmaker’s sexual content.
Mother also questioned the propriety of Father’s relationship with his wife. Mother’s counsel repeatedly referred to Father’s wife as his “niece,” which label Father disputed, though he conceded that “[his] mother and [his wife’s] grandfather [we]re a couple.” Father clarified, though, that his wife was not his mother’s child and that there was “[n]o genetic[ ] no[r] biological connection” between them. {Mother’s cross-examination of Father hinted that Father’s wife was young enough to be his daughter, even implying that Father had considered adopting his wife prior to their marriage. But Mother did not present evidence of Father’s wife’s age, and Father denied ever having contemplated such an alleged adoption.}
As for Partner, his work in the sex industry was not the only area of his background that Father highlighted:
- Partner admitted that, in approximately 2011, the Federal Bureau of Investigation (FBI) had raided his home and seized his hard drives because he “had some contact with [a] hacker group” that, according to Partner, he had been writing an article about.
- Partner confirmed that more than one person had accused him of rape. {These rape allegations were also referenced in the trial exhibits of Partner’s social-media posts. In response to one of Partner’s Twitter threads, an account named “Speaking Out” had tweeted, “[Partner] sexually abused me. I was 14, and [Partner] knew it.”} However, Partner denied ever having committed rape, and he testified that one of his accusers—a woman who had posted a blog about the alleged rape—had lodged the accusation because Partner “banned her from a Minecraft server.”
[b.] Treatment of the Children [see the full opinion -EV] …
[c.] Instability
On top of Partner’s background, Father presented evidence of Partner’s instability. Partner confirmed that he had post-traumatic stress disorder and borderline personality disorder and that, although he had been medicated for his conditions in the past, he had gone off of his medications at certain points in time and was not taking such medications at the time of trial. As it related to his borderline personality disorder, Partner explained that his medication was no longer necessary because he had completed treatment and had been “cured.”
{Partner’s social-media posts referenced his mental-health issues as well. In a series of tweets, he stated that he “ha[d] ptsd/bpd,” “c[ould]n[‘]t be employed,” and suffered from “black and white thinking” such that “[p]eople [he] s[aw] as evil ma[d]e [him] so angry to the point of being irrational.” He linked these issues to his status as a “former sex worker,” stating that he “had to do full service sex work to survive.”}
Father also noted that, although Partner had been living with Mother for seven years, the two were not married; Mother remained married to Husband. Mother explained that she had not divorced Husband because doing so would divert “money and resources” away from the custody case. She confirmed that, if and when she divorced Husband, she intended to marry Partner. Partner, meanwhile, testified that he was not sure how many husbands Mother had been married to and “ha[d]n’t really paid that much attention” because he “just d[id]n’t care enough to really worry about it.”
[d.] Social-Media Posts
Partner’s social-media posts were another source of Father’s concern. Father presented evidence that Partner was very active on social media—particularly on Twitter:
- One of Partner’s tweets had stated, “[I]f you take every rich person on the planet and puree them into a liquid and let that liquid ferment for a few months, it makes lovely fertilizer for plants.”
- Another of Partner’s Twitter threads had discussed “TERFs,” which Partner testified referred to “[t]rans-exclusionary radical feminist[s].” Partner had tweeted that “the trans community has been too nice to terfs for too long”; that “every time a TERF opens their mouths [if] they got a fist in it[,] they wouldn[‘]t open their f***ing mouths”; and that “[w]hat you do is get you a baseball bat and write ‘transmisogyny corrector’ on it and you whap the next terf who says sh**.”
- Another series of tweets had identified Father by name, labeling him “anti antifa,” calling him a “stalker a**hole,” and stating that Partner was “not gonna hide from his fascist a**.”
- Another of Partner’s tweets had advocated “f***ing up the personal and professional lives of fascists.”
- A Twitter poll that Partner had created asked individuals to vote whether, “if you see ten people beating up an ICE agent, … you either make it 11 or make popcorn.”
- Another had asserted that “[y]ou could literally cover ICE agents with fire ants and still have the moral high ground.” A similar tweet had applied the fire ants to “[f]ascists.”
- Another had stated, “[I]f you are a fellow white woman wanting to know how to get other white women to stop voting for [a certain political candidate], what you have to realize is dead Nazis can’t vote.” The tweet had gone on to state that “it’s not hard to slip something into her Mimosa at brunch.”
- Another tweet claimed to have “stop[ped] my neighbor from voting for [a certain political candidate] by threatening to throw him through a window.”
… Partner characterized the posts as non-violent, stating that he had “a very dark sense of humor” and that the posts had been intended as tongue-in-cheek jokes.
One social-media post that Partner did not describe as a joke, though, was on Facebook. There, in a Facebook group that Partner moderated, he had identified Father by name, shared links to Father’s personal and professional Facebook pages, and labeled Father as “a fascist, … a white supremacist, a racist, a rapist[,] and an all[-]around vile human being” who “hates trans women … [and] antifa.” The Facebook post had ended with Partner asking others to “do [him] a favor and make this racist [referring to Father] afraid again.” When asked at trial if the Facebook post had been serious, Partner smiled and confirmed that it had been serious “because the statements were true.” {At another point, Partner testified that he had never spoken with Father and that he had no opinion on his skills as a parent.}
Father claimed that the Facebook post had extensive ramifications. He testified that, after the post, he “had more than a hundred phone calls come into [his] job until [he] was fired,” and he “was kicked out of [his] church, lost [his] Scout troop, lost [his] website, lost [his] business, [and] lost many friends.” {Husband, too, testified that he believed there had been “a coordinated effort” by Partner to ban Father from Facebook.} But Partner denied that he had intended for the Facebook post to “encourag[e] people to go to [Father’s] Facebook [page] and screw with him.”
As for Mother, she stated that she had not followed Partner’s social-media posts and that, when she learned of the Facebook post in particular, she had asked Partner to delete it. Mother insisted that Father had been the one making ill-advised statements, emphasizing that Father had disparaged her to medical personnel and in the children’s presence. Indeed, Father admitted as much, and some of his statements were documented in Owen’s medical records. Mother explained that she sought modification of Father’s involvement in medical decisions because Father “ke[pt] using the contact that he ha[d] with doctors to try to frame [her] for things.” …
Modification Order
Based on the trial evidence and interviews, the trial court granted Father the exclusive right to designate the children’s primary residence, to make decisions about the children’s education, and to consent to their invasive medical procedures. The court later entered findings of fact and conclusions of law, which included
- a finding that Mother had cohabitated with Partner while married to Husband and while the children were in her care;
- the conclusion that “[t]he circumstances … ha[d] materially and substantially changed” in light of the parties’ relocations, Mother’s remarriage, Mother’s relationship with Partner, Mother’s failure to meet the children’s medical and educational needs, and Partner’s “pos[ing] a risk to the welfare of the children”; and
- multiple findings that Partner “behaves and speaks in a minacious[,] … bilious[,] … hyperbolic[,] … [and] corybantic manner in the presence of the children[,] or in a manner that can affect the children’s emotional or psychological development”; and
- the conclusion that modifying the custody order was in the children’s best interest….
The appellate court held that the trial court didn’t “act[] arbitrarily or unreasonably” in rendering the decision that it did (that’s the standard of review in most states for child custody orders); among other things, the appellate court reasoned,
Mother and Father presented differing descriptions of one another’s misdeeds and of the children’s medical and educational needs [see the full opinion for more on that -EV], with no overwhelming evidence to mandate a finding in either parent’s direction. The trial court—having “observe[d] the demeanor and personalities of the witnesses”—was free to believe Father’s testimony….
The same is true of Mother’s contention that “[n]o reasonable person would take [Partner’s social-media] statement[s] seriously.” True, Partner claimed that most of his social-media posts were intended as jokes, but even he conceded that some of the posts were serious. And Father’s testimony demonstrated that Partner’s social-media statements had real-world consequences, including Father’s losing his job. After hearing this evidence, observing Partner’s demeanor as he testified, and reading the social-media posts, the trial court expressly stated that it “didn’t find [Partner] … credible on [whether his comments] … w[ere] humorous.” Once again, this credibility assessment was the trial court’s to make. {Even Mother acknowledges that some people could find Partner’s social-media posts offensive, i.e., that not everyone views them as jokes.}
{To the extent that Mother asserts that Partner’s constitutional protections prohibited the trial court from considering the social-media posts as evidence at all, Mother made no such objection at trial. In fact, the trial court was the one to note its concern that several of Partner’s Twitter posts appeared to be “permissible political statement[s]” or “remote in time,” and it did so to explain why it was excluding them from evidence. The court stated that it was not admitting Partner’s social-media posts as exhibits unless the parties could “tie [them] into the father or where the act is so extreme that it appears to be calling for … the immediate killing of people.”
Regardless, Mother has not cited any case law to support her contention that a trial court violates a non-party’s constitutional rights by taking his pattern of public statements into account when determining the best interest of children that share his home.}
Plus, even without Father’s disputed testimony or Partner’s social-media posts, there was other, undisputed evidence that supported the trial court’s best-interest finding:
- Mother admitted that she had failed to surrender possession of the children for Father’s scheduled visitations on multiple occasions;
- Mother had relocated or dramatically altered the children’s home environment multiple times, first allowing Partner to live with them, then marrying and moving in with Husband, then moving out of Husband’s home, and then allowing Partner to live with them again; and
- Mother had allowed Partner to live with her and the children despite Partner’s previous work as a prostitute, despite a previous FBI raid on his home, and despite the allegations of rape lodged against him.
Taking this together with the disputed evidence that the trial court reasonably credited in favor of the modification, there was sufficient probative evidence to support the trial court’s conclusion that modification was in the children’s best-interest.
I think that denying a parent custody because of the parent’s ideological advocacy—or the parent’s partner’s advocacy—may indeed violate the First Amendment, though with some exceptions (see Parent-Child Speech and Child Custody Speech Restrictions). It might, for instance, be against a child’s best interests to be taught various ideas by one parent, for instances ideas that are racist, pro-revolutionary, sharply anti-police, deeply hostile to Israelis or Palestinians, etc., but I don’t think the legal system should be empowered to use that as a basis to change the child’s custody to the other parent. I think that’s even more clear as to one parent’s (or, again, the partner’s) speech to the public. (Query whether the same would apply as to speech that is aimed at getting the other custodial parent fired.)
Still, the parties are required to raise those objections in order for them to be considered on appeal. And it sounds like there was a lot more going on here than just that. In any event, it seemed like an interesting enough controversy to pass along.
