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Click here for the full text of this decision FACTS:Upon their divorce, Roger Duck and Melanie Williamson were named joint managing conservators of their two sons, ages 6 and 3. Williamson was named as the parent with the right to establish the children’s primary residence. The possession schedule and the amount of child support in the divorce decree were set by agreement. Eventually, Duck filed a petition for a downward modification of his child support obligation and advised Williamson that he would begin sending her less per month rather than the court-ordered amount. Williamson filed a motion to enforce, and Duck was found in contempt for failure to pay child support. In response to the contempt finding, Duck proposed that the children should spend alternate nights with him. Williamson rejected this “ping-pong” proposal because it would unduly disrupt the children’s schedule. She would not agree to Duck’s request for additional time. Duck then amended his petition seeking an increase in his periods of possession of the children to include overnights on Sundays, Mondays and Thursdays. The district court entered an order modifying the possession schedule to allow Duck to keep the children overnight on Thursdays as permitted by an election under the standard possession schedule. The district court denied Duck’s request for Sunday and Monday overnight possession and declined to order a change in Duck’s child support obligation. On appeal, Duck challenged the trial court’s failure to decrease child support and to grant further modification of the possession schedule, and the court’s finding that it was not in the children’s best interest to implement a 50-50 division of periods of possession. HOLDING:The court affirms the trial court’s order. Duck raises constitutional and statutory challenges to the court’s order. He contends that the district court erred regarding the amount of his access to and possession of the children because he is constitutionally entitled to equal time with them. In addition to the Thursday nights that he was awarded by the district court, Duck also sought Sunday night possession of the children, claiming that he has an “absolute right” to Sunday overnight stays by statute. Under the applicable portions of Texas Family Code 156.101, the district court may modify the conservatorship of a child only if the modification is in the child’s best interest, and the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed since the date of rendition of the order. The court holds that Duck failed to justify his request for Sunday night possession by showing that his circumstances or those of his children had materially and substantially changed since the rendition of the last modification order. Thus, the court concludes that Duck did not have an “absolute right” to the Sunday overnight possession. Duck further lodges a constitutional challenge to the court’s use of the best-interest-of-the-children standard, claiming that it interferes with his fundamental right to parent his children and does not serve a compelling state interest. Duck argues that good parents should have substantially equal periods of possession with their children. After reviewing the record, the court finds no testimony by Duck that his proposal would be in the best interest of the children. Indeed, at one point the district court admonished Duck to focus on the interest of the children, rather than his own best interest. Duck responded that “the best interest of the children cannot be at the expense of my constitutional rights.” The court notes that joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators. There is a rebuttable presumption that the standard visitation order provides reasonable minimum possession of a child for a parent named as a joint managing conservator and that such possession is in the best interest of the child. Consequently, the court rejects Duck’s argument regarding the best-interest-of-the-children standard. Duck also contends that the district court abused its discretion by refusing to further reduce the amount of child support because Williamson had the same or similar financial resources as he did and a greater obligation had been imposed on him as a male and the father. The court holds that Duck did not meet his statutory burden of demonstrating a reason for reducing his child support obligation. Nor does the court find anything in the record to support his claim that the court arbitrarily imposed child support obligations upon him in violation of his constitutional rights as a parent. Because Duck’s income has not changed since the last modification to the child support order, the court concludes that the amount of child support being paid is well within the presumptively reasonable amount established by the Texas Family Code’s guidelines, and he did not produce evidence justifying variance from the guidelines. OPINION:Patterson, J.; Law, C.J., Patterson and Puryear, JJ. CONCURRENCE:Puryear, J. “I write separately to express my belief that the standards currently used in making and reviewing orders that have the effect of limiting a parent’s access to his or her children do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children.” “The current court-created standard allows a trial court holding severely curtailing parental rights to stand so long as there is some evidence upon which to base its findings and an appellant does not show that the court failed to follow any guiding rules or principles. This standard is inconsistent with the Constitutional nature and weighty import of the rights at issue. It presents a significant risk of erroneous deprivation of the most sacred of liberty interests of parents and children.”

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