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….
