TOOL OF THE DAY: “Unduly Burdensome” and “Unnecessarily Restrictive”
CATEGORY: Family Law Caselaw
Are the appellate courts beginning to realize that the trial courts are getting carried away?
One of the most recent rulings, IN INTEREST OF HDC, coming out of Tex: Court of Appeals, 14th Dist., November 18, 2014, overturns a Houston, Texas trial court’s order requiring the mother to be home during her 30-day summer possession.
Justice Kem Thompson Frost explains their decision as follows:
“…we conclude the requirement that Mother herself be “off work” and “present” during her month of summer possession is unduly burdensome and unnecessarily restrictive….The restriction requiring Mother to be “off work” and “present” to exercise her summer period of possession exceeds that which is required to protect the best interests of the children because a less burdensome restriction can serve the trial court’s reasonable requirement that the children be properly supervised at all times.”
It’s important here to note that the appellate court uses the words “unduly burdensome” and “unnecessarily restrictive”. The United States Supreme Court justices use this measure when determining whether something is unconstitutional.
Justice Frost came to this conclusion after not finding sufficient evidence to justify this type of restriction. The appellate court will try to find ways to support the ruling the trial court judge made. But when they cannot find the evidence on the record to support the decision the judge made, then it gets overturned, just as this portion of the ruling did. The conclusion regarding whether or not the court could require the mother to have to be present when her children were in her possession during her summer month was as follows:
“The evidence, however, is insufficient to support a restriction requiring Mother to be “off work” and “present” during her extended thirty-day summer possession; we therefore reverse this part of the trial court’s judgment and remand it to the trial court to bring the restriction into conformity with the evidence.”
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