Rahmatullah Basha Syed v. Khadija Masihuddin , 521 S.W.3d 840 ( 2017 )

Opinion issued May 18, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00071-CV
———————————
RAHMATULLAH BASHA SYED, Appellant
V.
KHADIJA MASIHUDDIN, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Case No. 2014-05013
OPINION
Appellant, Rahmatullah Basha Syed, appeals the trial court’s final decree of
divorce terminating his marriage to appellee, Khadija Masihuddin. In three issues,
Syed challenges the portion of the trial court’s decree finding that deviating from
the standard possession order was in his minor children’s best interest and ordering
that he have possession of or access to the children on the Saturdays following the
first, third, and fifth Friday of each month, from 10:00 a.m. until 6:00 p.m. Because
we conclude that sufficient evidence supported the trial court’s determination such
that its ruling did not constitute an abuse of discretion, we affirm.
Background
In this proceeding, Syed and Masihuddin were seeking to dissolve their
second marriage to each other. The parties were originally married by way of an
arranged marriage negotiated by their parents. The appellate record contains very
limited information regarding the parties’ first marriage—Masihuddin testified that
the wedding occurred in India and the parties subsequently moved to the United
States and lived with her family. Masihuddin also testified that Syed left her in
2007, prior to the birth of the couple’s first child, U.K., on July 3, 2008, in
Houston. Syed, who is not a United States citizen, returned to India when he
separated from Masihuddin the first time. Syed further testified that he first saw
U.K. via Skype in January 2009. Syed testified that he communicated with U.K.
“frequently” during that time period, that he sent Masihuddin pictures, and that he
communicated with U.K. via Skype.
Masihuddin testified that she obtained a default divorce dissolving the first
marriage in 2009, and, according to the testimony at trial, the final decree awarded
Syed a standard visitation order as to U.K. and ordered him to pay child support.
2
Masihuddin testified that she did not object to the trial court’s order granting a
standard possession order in the first divorce—she had not been concerned about
visitation because Syed was in India at the time. Masihuddin gave conflicting
testimony about the communication between herself and Syed in the period
between 2009 and 2012, in one instance testifying that she did not have any
communication with him during that time, but later testifying that he sent her
pictures in 2009 and that she was communicating with him at that point.
Syed visited the United States in 2012, and, according to Masihuddin, Syed
sent a letter to Masihuddin’s father stating that he wanted to visit U.K. in Houston.
Syed was able to visit U.K. in July 2012 and gave U.K. a birthday gift. Around that
same time, Masihuddin and her father made arrangements with Syed for Syed and
Masihuddin to get remarried. Syed testified that he remarried Masihuddin because
he loved U.K. and Masihuddin and because he felt like he had no choice but to
remarry Masihuddin if he wanted “to be in [his] daughter’s life.” Masihuddin
testified that she was willing to marry Syed again because he promised that he
would not leave her again as he had done in 2007.
On July 21, 2012, the couple married for the second time. Masihuddin
sponsored Syed so that he could remain in the United States and obtain appropriate
immigration documents. They lived together at the same address with U.K. and
with Masihuddin’s family, including her mother, father, brothers, and sister.
3
During this time, Syed worked and contributed to the household finances. He also
took U.K. to school and did other activities with her, such as going to the park.
Masihuddin testified that she provided most of U.K.’s day-to-day care.
On December 18, 2012, while Masihuddin was pregnant with the couple’s
second child, she and Syed separated for a second time.
Syed alleges that this second separation occurred when he left the house they
shared because of the “verbal abuse, the emotional abuse, [and] financial abuse”
committed against him by Masihuddin and her parents and brothers. He testified
that Masihuddin started a quarrel with him, demanding, among other things, that he
turn his paycheck over to her. She also took his cell phone away from him. He
decided to leave the house, but Masihuddin’s father began verbally abusing him.
Syed further testified that Masihuddin’s father and brother “snatched” his bags and
other property away from him, including his passport, his money, his permanent
residency card, and his work authorization card, and they physically attempted to
prevent him from leaving. Syed testified that he stayed in the house while
Masihuddin, her father, mother, and brothers threatened him, including by telling
him that he could not leave and that he would not see his children. Masihuddin
denied that she ever mistreated Syed.
Syed testified that he reported the December 18, 2012 incident to the family
violence unit of the Houston Police Department. Syed further testified that on
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December 20, 2012, he returned to Masihuddin’s home to retrieve his personal
belongings, but her family refused to give them to him. He further testified that
Masihuddin’s brother grabbed him by his collar and “snatched away [his] phone
when [he] was seeking help from 9-1-1.” Syed stated that the brother “smashed the
phone . . . on the ground. He grabbed my belongings, vandalized on the street.”
Syed further testified that Masihuddin’s brother tried to force him to stay against
his will, but then the police arrived. Syed was able to get all of his possessions at
that time except for his immigration documents, and then the police asked him to
leave, which he did.
Syed testified that he began living in his local mosque after he left
Masihuddin’s home. He further testified that, on December 23, 2012,
Masihuddin’s mother called the mosque in an attempt to have him removed, but he
continued to stay there for several months until he could obtain an apartment of his
own.
In January 2013, less than two weeks after she and Syed separated for the
second time, Masihuddin and her family moved to a new home. Masihuddin did
not give Syed their new address because she “did not know what his contact
number was.” Syed further stated that at the time of trial he was part of an address
confidentiality program operated by the Attorney General’s Office, and
5
Masihuddin’s testimony indicated that she became aware of that fact during a
hearing in the trial court that occurred at some point prior to the trial.
Syed’s and Masihuddin’s second child, U.H., was born on June 16, 2013.
Masihuddin did not list Syed’s name on U.H.’s birth certificate. She testified at
trial that this was because the hospital staff advised her not to list her husband
because “he was not there.”
Syed testified that he tried to locate Masihuddin and his children, including
by visiting his former neighbors beginning in January 2013 and by seeking help
from a local imam to arrange visitation with Masihuddin and his children, which
Masihuddin or her father refused. Syed also procured help from the organization
Child Find America, a non-profit that assisted parents in locating their estranged
minor children. Child Find was able to discover Masihuddin’s new address, but its
internal policy prevented it from disclosing the new address to Syed. However,
Child Find provided the address to the police in the area where Masihuddin was
living with her parents, and police were able to conduct a welfare check on the
girls in August 2013. Masihuddin acknowledged that the police visited her home to
check on U.K. and U.H.’s welfare in 2013.
Syed testified that during this period, between his separation from
Masihuddin and his filing of the divorce petition, he was not able to have any
communication with his children. He stated that he sent cards telling them he
6
missed them. However, all of the cards were returned to him marked as refused.
Syed also testified that, in January 2013, he sent a money order for $300 out of his
last paycheck received in 2012. However, Syed did not know whether Masihuddin
received or cashed the money order.
Syed officially filed for divorce in February 2014. According to the
testimony at trial, he also contested paternity at one point, asking Masihuddin to
obtain a genetic test of U.H. However, at the trial, Syed testified that he
acknowledged his paternity of U.H., and the parties asked the trial court to take
judicial notice of the results of the paternity test.1
Beginning in May 2015, Syed was able to obtain court-ordered visitation
with U.K. The parties testified that the trial court had entered temporary visitation
orders that required supervised “SAFE visits” so that U.K. could become familiar
with her father. Masihuddin caused U.K. to miss two of these visitation
appointments.
In September 2015, the temporary orders were modified, enabling Syed to
have unsupervised visitation with both U.K. and U.H. on four enumerated
Saturdays in the month and half leading up to the trial, from 10:00 a.m. until 6:00
p.m. Masihuddin acknowledged keeping U.H., then two years old, from visiting
1
The paternity test was not included in the record on appeal.
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Syed during one of these court-ordered Saturday visitation periods because U.H.
was crying and did not want to get in the car with Syed.
In a separate incident, on September 26, 2015, Syed’s attempt to exercise his
possession of the children resulted in both parties calling the police. U.H. did not
want to get into the car with her father and clung to her mother. Syed took the child
from Masihuddin and walked down the block. Masihuddin testified that she called
police because Syed “grabbed the child, and he went out of my sight.” Syed
testified that he was fleeing Masihuddin’s brother who was threatening his life.
Masihuddin acknowledged that two of her brothers were present that day and came
outside while she attempted to calm U.H., but she stated that she did not hear her
brothers say anything to Syed. Police arrived on the scene, checked the car seat in
Syed’s vehicle, and instructed Syed to proceed with the visit. Syed then returned
the children to Masihuddin when his visitation period was over.
During the trial, Masihuddin listed reasons for wanting Syed’s access to the
children restricted. Regarding U.K., who was seven at the time of trial, Masihuddin
stated that she “worried about her hygiene” because U.K. “has a constipation
problem, and sometimes she wets the bed.” She also testified that U.K.
occasionally needed toileting help due to her constipation problem, help that
Masihuddin did not believe Syed should provide due to her religious beliefs, which
provided that men cannot bathe or otherwise “touch [the] private parts” of girls
8
aged seven or older. Masihuddin also wished for her children to follow the tenents
of her religion and to eat only food certified as halal.
Regarding U.H., who was two years old at the time of trial, Masihuddin
stated that the child was still breastfed and needed to nurse at night in order to
sleep, although she acknowledged that she had never sent any breast milk when
U.H. visited her father. Masihuddin also testified that U.H. was able to drink whole
milk. Masihuddin testified that she was concerned because Syed “has never
practiced or relaxed with her, and this is new for [U.H.] also.”
Masihuddin also testified that U.H. was born with a heart defect. She
testified that “at the time of [U.H.’s birth], I came to know that she has two holes
in her heart.” Masihuddin further testified that she believed her daughter could be
“adversely affected” if she cried and that U.H. should not be exposed to excessive
heat.
At various times throughout her testimony, Masihuddin identified incidents
of mistreatment by Syed. She testified that Syed had physically assaulted her on
one occasion in 2007 when “[h]e grabbed [her] [up] the stairs.” She testified that
she became unconscious and Syed took her to the hospital. Masihuddin also
testified that, on one occasion while they were married, Syed forced her to engage
in sexual intercourse with him. She also testified that she hurt her neck when Syed
took U.H. from her during the incident on September 26, 2015. She stated that she
9
had concerns about his hurting her again or hurting the children. However,
Masihuddin also testified that she had sought to reconcile with Syed following
their second separation, and she stated there would be no problem “[i]f we all lived
together.” And she also agreed that Syed had never harmed the children in any
way.
Regarding Syed’s visitations with the children based on the trial court’s
temporary orders, Masihuddin testified that, on one occasion, U.H. returned from a
visit with Syed and “the diaper was not changed properly.” Further testimony
indicated that Syed had placed the diaper on backward. On another occasion, U.H.
came home without a diaper and without her shoes and with dirty socks. Finally,
Masihuddin testified that U.K. returned from a visit with Syed with “mosquito
bites on her stomach and legs,” although she also agreed that U.K. did not become
sick from the bites.
Syed testified that, at the time of trial, he lived in a one-bedroom, one-
bathroom apartment with his mother, who was visiting from India and would be
returning home after the trial. He believed that his apartment was too small to have
his daughters stay overnight, but he also testified that he was aware that his current
apartment complex had a two bedroom apartment available and that he was willing
and able to rent the two-bedroom apartment if he was granted overnight visitation
with his daughters. He also acknowledged that, other than a few toys, he did not
10
have clothing, bedding, or other child-appropriate items necessary to provide more
extended care for either U.K. or U.H.
At trial, Syed and Masihuddin both testified extensively about other issues
relevant to the divorce proceedings generally. Regarding Syed’s immigration
status, Masihuddin testified that she sponsored him in 2012, and he obtained
documents to stay in the United States that were good for two years. Syed testified
that he had obtained an extension of those papers and that, while he was still a
citizen of India with an Indian passport, he was a legal resident of the United
States.
Regarding his employment history, Syed stated that he had a master’s degree
in public health and that he was a licensed physician in India, but he was not able
to practice medicine in the United States. Syed testified that he had been
unemployed for a significant period of time between his separation from
Masihuddin in December 2012 and June 2014. Syed testified that, at the time of
trial, he was employed at International Bank of Commerce and that he had been
employed there for almost a year. Syed further testified that he had waived health
insurance coverage after being granted a health insurance exemption, and in return,
he received an additional $50 per paycheck. Syed stated that he used a Gold Card
from Harris Health Services when he needed medical care. He testified that the
insurance he opted out of was just for him—he did not know if insurance coverage
11
for his children was available through his employer or what it would cost for him
to insure them. He testified that his children were on Medicaid.
The trial court entered a final divorce decree. The trial court named
Masihuddin as sole managing conservator and Syed as a possessory conservator.
The trial court further found that that “a Standard Possession Order is unworkable
and inappropriate [and] is not in the best interest of the children” and that “the
terms of the following possession order [are] not more restrictive than necessary to
protect the best interest of the children.” It ordered that Syed have access to his
daughters on the Saturdays following the first, third, and fifth Fridays of each
month from 10:00 a.m. to 6:00 p.m. No other provisions for any visitation or
possession by Syed were made.2
Syed requested that the trial court file findings of fact pursuant to Family
Code section 153.258, requiring the trial court to state the specific reasons for its
deviation from the standard possession order.3 Syed later filed a timely notice of
past-due findings of fact. After the case was filed in this Court, we ordered an
2
The trial court also entered orders regarding support and dividing the marital
estate, but Syed challenges only the portion of the order addressing his possession
of and access to his children in his capacity as their possessory conservator.
3
Family Code section 153.258 provides that if the trial court deviates from the
standard possession order and orders less visitation than the guidelines require, it
shall, upon timely request, state in the order the specific reasons for the variance
from the standard order. TEX. FAM. CODE ANN. § 153.258 (West 2014).
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abatement so that the trial court could provide the requested findings. The trial
court subsequently made the following findings of fact, among others:
[The] periods of possession vary from the Standard Possession Order
for the following reasons:
a) Petitioner, Rahmatullah Basha Syed’s failure to care for the
children’s hygiene during his periods of possession;
b) Petitioner, Rahmatullah Basha Syed’s failure to have supported the
children while employed;
c) Petitioner, Rahmatullah Basha Syed’s neglect of children when
they were injured, or bitten by insects;
d) Petitioner, Rahmatullah Basha Syed’s failure to put the children’s
needs before his own;
e) Petitioner, Rahmatullah Basha Syed’s inability to empathize with
the children;
f) Petitioner, Rahmatullah Basha Syed’s inability to model good
behavior for his own children;
g) Credible evidence that Petitioner, Rahmatullah Basha Syed, has a
history or pattern of past or present neglect of his children; and,
h) Credible evidence that Petitioner, Rahmatullah Basha Syed, was
dishonest in his communication with Law Enforcement authorities.
Deviation from the Standard Possession Order
In his first issue on appeal, Syed argues that the trial court abused its
discretion by restricting his possession of and access to the children more severely
than was necessary to protect the children’s best interest. In his second issue, he
argues that the trial court abused its discretion by restricting his possession of and
13
access to the children “for reasons that are not supported by sufficient evidence in
the record.” In his third issue, Syed argues that the trial court abused its discretion
by restricting his periods of possession “for improper reasons, such as his religious
practices, his past accrual of child support arrears, or his use of public benefits and
services for family violence victims.” We consider these issues together.
A. Standard of Review
“The best interest of the child shall always be the primary consideration of
the court in determining issues of conservatorship and possession of and access to
the child.” TEX. FAM. CODE ANN. § 153.002 (West 2014). Specifically, the
legislature has articulated the public policy of this state:
(a) The public policy of this state is to:
(1) assure that children will have frequent and continuing
contact with parents who have shown the ability to act in the
best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the
child; and
(3) encourage parents to share in the rights and duties of raising
their child after the parents have separated or dissolved their
marriage.
(b) A court may not render an order that conditions the right of a
conservator to possession of or access to a child on the payment of
child support.
Id. § 153.001 (West 2014).
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In determining the issues of conservatorship and possession of a child, the
trial court is given wide latitude in determining the best interest of the child and
will be reversed only for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982); Mauldin v Clements, 428 S.W.3d 247, 268 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). This is, in part, because the trial court is in a
better position having faced the parties and their witnesses, observed their
demeanor, and had the opportunity to evaluate the claims made by each parent.
Coleman v. Coleman, 109 S.W.3d 108, 111 (Tex. App.—Austin 2003, no pet.);
Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex. App.—El Paso 1997, no writ).
The judgment of the trial court will be reversed only if it appears from the record
as a whole that the trial court abused its discretion. Gillespie, 644 S.W.2d at 451.
The test for abuse of discretion is whether the trial court acted without reference to
any guiding rules or principles; in other words, whether the act was arbitrary or
unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
Under an abuse of discretion standard, legal and factual insufficiency are not
independent grounds for asserting error, but are relevant factors in assessing
whether a trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753
(Tex. App.—Dallas 2004, no pet.). In determining whether there has been an abuse
of discretion because the evidence is legally or factually insufficient to support the
trial court’s decision, we consider whether the trial court had sufficient information
15
upon which to exercise its discretion and whether it erred in its application of that
discretion. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.––Fort Worth 2010, no
pet.). The traditional sufficiency review is involved in answering the first question4
and whether the trial court made a reasonable decision in answering the second. Id.
When the testimony of witnesses is conflicting, we will not disturb the
credibility determinations made by the fact finder, and we will presume that it
resolved any conflict in favor of the verdict. See Coleman, 109 S.W.3d at 111;
Minjarez v. Minjarez, 495 S.W.2d 630, 632 (Tex. App.—Amarillo 1973, no writ).
B. The Law Regarding Deviation from Standard Possession Order
All of Syed’s issues on appeal challenge the portion of the trial court’s order
providing him with less visitation with U.K. and U.H. than called for by a standard
possession order. He argues that the trial court’s specific findings on this issue are
either unsupported by the evidence or are improper considerations in determining
4
In conducting a legal sufficiency review, an appellate court reviews all the
evidence in a light favorable to the finding, crediting favorable evidence if a
reasonable fact-finder could do so and disregarding contrary evidence unless a
reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). In reviewing a no-evidence point, the appellate court must view
evidence in the light that tends to support the finding of the disputed fact, and it
must disregard all evidence and inferences to contrary. Lenz v. Lenz, 79 S.W.3d
10, 13 (Tex. 2002); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). If
the evidence would enable reasonable and fair-minded people to differ in their
conclusions, then the fact-finder must be allowed to do so. City of Keller, 168
S.W.3d at 822. A reviewing court cannot substitute its judgment for that of the
fact-finder, so long as the evidence falls within this zone of reasonable
disagreement. Id.
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the issue of possession. And he argues that the trial court’s order was more
restrictive than necessary to serve the children’s best interest.
In suits affecting the parent-child relationship, there is a rebuttable
presumption that a standard possession order, as outlined in the statute,
“(1) provides reasonable minimum possession of a child for a parent named as a
possessory conservator or joint managing conservator; and (2) is in the best interest
of the child.” TEX. FAM. CODE ANN. § 153.252 (West 2014). A court may deviate
from the terms of the standard order if those terms would be unworkable or
inappropriate and against the child’s best interest. Id. § 153.253 (West 2014) (“The
court shall render an order that grants periods of possession of the child as similar
as possible to those provided by the standard possession order if the work schedule
or other special circumstances of the managing conservator, the possessory
conservator, or the child, or the year-round school schedule of the child, make the
standard order unworkable or inappropriate.”); see also id. § 153.251(a) (West
2014) (“The guidelines established in the standard possession order are intended to
guide the courts in ordering the terms and conditions for possession of a child by a
parent named as a possessory conservator or as the minimum possession for a joint
managing conservator.”).
When deviating from the standard possession order, the trial court may
consider: “(1) the age, developmental status, circumstances, needs, and best
17
interest of the child; (2) the circumstances of the managing conservator and of the
parent named as a possessory conservator; and (3) any other relevant factor.” Id.
§ 153.256 (West 2014). The trial court may also place conditions on a parent’s
access, such as supervised visitation, if necessary for the child’s best interest. In re
K.S., 492 S.W.3d 419, 429 (Tex. App.––Houston [14th Dist.] 2016, pet. denied)
(citing TEX. FAM. CODE ANN. § 153.004(e) (West 2014) (“It is a rebuttable
presumption that it is not in the best interest of a child for a parent to have
unsupervised visitation with the child if credible evidence is presented of a history
or pattern of past or present child neglect. . . .”)). However, the terms of an order
limiting or restricting a parent’s right to possession of or access to a child must not
exceed those required to protect the best interest of the child. TEX. FAM. CODE
ANN. § 153.193 (West 2014).
C. Analysis
The trial court made numerous findings of fact in support of the portion of
its decree awarding Syed unsupervised visitation with U.K. and U.H. on the
Saturdays following the first, third, and fifth Fridays of each month. Among other
findings, the trial court made some findings, such as those setting out U.K.’s date
of birth and other relevant dates, that Syed does not challenge. For example, the
trial court’s findings and the evidence demonstrated that U.K. and U.H. were seven
and two, respectively, at the time of trial. The trial court found, and the evidence
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demonstrated, that Syed left Masihuddin in 2007 while she was pregnant with U.K.
and that, following their second marriage, he again left Masihuddin while she was
pregnant with U.H. and again had almost no contact with the children between
December 18, 2012, and May 2015 when the trial court allowed him to begin
having visitation.
The trial court also made numerous findings regarding what it described as a
history of pattern of neglect. See In re K.S., 492 S.W.3d at 429 (citing TEX. FAM.
CODE ANN. § 153.004(e)). Specifically, the trial court found that Syed did not meet
U.K. until July 2012, which the evidence demonstrated was around the time of her
fourth birthday, and that he did not exercise any of the possession of U.K. awarded
him in the first divorce decree or otherwise have contact with her between the time
that he left Masihuddin in 2007 and the time they met in 2012 just prior to his
remarriage to Masihuddin. The trial court found, among other facts, that Syed
neglected the children by “having little or no contact when he could have seen
them at any time, prior to the divorce filing”; that Syed “did not choose to see his
second daughter until she was two years old”; and that “[d]uring the parties’
second marriage, [Syed] did not care for the children for two years.”
The record supports these findings. At some time in 2007, Syed left
Masihuddin while she was pregnant with U.K. and returned to India. Although
Syed testified, and Masihuddin agreed, that he had at least some contact with her in
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the time period between 2009 and 2012, it was within the trial court’s discretion to
determine that such limited contact—such as sending pictures on one occasion and
communicating on other occasions with Masihuddin via Skype—constituted
insufficient contact to fulfill his duties and obligations as a parent. Furthermore,
the evidence is uncontroverted that Syed did not meet U.K. in person until around
the time of her fourth birthday. There was no evidence in the record that he had
made any attempts to meet U.K. in person or have any visitation with her during
the time between his first divorce from Masihuddin in 2009 and their subsequent
remarriage in 2012.
Syed and Masihuddin both testified that Syed returned to the United States
in 2012 and contacted Masihuddin’s father to arrange an opportunity to visit U.K.
At this time, the parties remarried in July 2012. However, several months later, in
December 2012, Syed again left Masihuddin while she was pregnant with the
couple’s second child. The evidence was uncontroverted that Syed did not have
any contact with either U.K. or U.H. between December 2012 and May 2015.
Although Syed testified that he made several attempts to contact Masihuddin
during this time, we note that the only evidence in the record regarding his efforts
to see the children during this time came from the frequently conflicting testimony
of Syed and Masihuddin. Syed testified that he asked his former neighbors, his
local imam, and the Child Find organization to help him locate Masihuddin and her
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family. While Masihuddin agreed that the local police came to check on the
wellbeing of the children at one point during her second separation from Syed, her
repeated testimony at trial was that Syed had abandoned her and her children.
Given this conflicting testimony, it was within the trial court’s role as factfinder—
who was in a better position to make such determinations, having faced the parties
and their witnesses, observed their demeanor, and had the opportunity to evaluate
the claims made by each parent—to credit Masihuddin’s testimony and discredit
Syed’s. See Coleman, 109 S.W.3d at 111 (holding that trial court is in best position
to observe parties and witnesses and evaluate claims and, thus, we will not disturb
its judgment absent abuse of discretion); see also City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005) (holding that if evidence would enable reasonable
and fair-minded people to differ in their conclusions, then fact-finder must be
allowed to do so, and reviewing court cannot substitute its judgment for that of
fact-finder so long as evidence falls within this zone of reasonable disagreement).
Based on these findings and evidence, we conclude that the trial court had
sufficient information upon which to exercise its discretion and that it did not
abuse its discretion in rendering the order here. See Gillespie, 644 S.W.2d at 451
(holding that trial court has wide latitude in determining best interest of children
and will be reversed only for abuse of discretion); In re M.M.M., 307 S.W.3d at
849 (holding that in determining whether trial court abused its discretion because
21
of legally or factually insufficient evidence, appellate court considers whether trial
court had sufficient information upon which to exercise its discretion and whether
it erred in its application of that discretion).
In his second issue, Syed makes numerous challenges to the accuracy of the
trial court’s fact findings, arguing that many of them are not supported by
sufficient evidence. In his third issue, Syed argues several of the trial court’s fact
findings constituted improper consideration in evaluating his rights of possession
of or access to U.K. and U.H. However, because we conclude that the findings
outlined above are supported by sufficient evidence to allow the trial court to make
its determination deviating from the standard possession order and that the trial
court’s determination did not constitute an abuse of discretion, we need not analyze
every one of the remaining findings of fact.
We overrule Syed’s second and third issues.
In his first issue, Syed argues that the trial court’s determination to award
him less than a standard possession order—to award only two or three eight-hour
visitations per month, with no overnight or holiday visitation—was an abuse of
discretion because it restricted his “possession of and access to his children more
severely than necessary to protect the children’s best interest.” We disagree.
The trial court found, for example, that Syed “had never cared for the
children overnight” and that he had “failed to provide a proper living environment
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for the children to visit with him.” Syed argues that he cared for U.K. overnight
during the time he lived with her and Masihuddin following the couple’s second
marriage in July 2012 and that he also took U.K. to school and other places like the
park. However, Masihuddin testified that during that five month period, she
provided virtually all of U.K.’s care. It was not an abuse of discretion for the trial
court to determine, based on this evidence, that Syed had not provided care for the
children overnight.
The evidence at trial further demonstrated that Syed lived in a one-bedroom,
one-bathroom apartment. Syed testified that he believed that his apartment was too
small for his children to come for overnight visits, and he stated that he only had a
few toys or other items for the girls in his home. Syed testified that he was willing
to obtain a larger apartment, but it is undisputed that he had not done so at the time
of trial. He had never purchased nor provided any diapers, clothing, or other items
that the children would need to have more extended visits.
Given these findings and supporting evidence demonstrating Syed’s lack of
regular involvement with his children, his inexperience with parenting, and his
inadequate living conditions, we cannot say the trial court abused its discretion in
limiting his visitation to regular daytime visits. The visitation schedule set out by
the trial court is not more restrictive than necessary to balance the children’s
interest in “having frequent and continuing contact with parents who have shown
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the ability to act in the best interest of the child” and their interest in having a safe,
stable environment.5 See TEX. FAM. CODE ANN. §§ 153.001, 153.193.
We overrule Syed’s first issue.
Conclusion
We affirm the trial court’s final decree.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Huddle.
5
We further observe that the trial court retains jurisdiction to modify its
conservatorship order when it is in the children’s best interest and the parents’
circumstances have changed materially and substantially. In re J.A.J., 243 S.W.3d
611, 617 (Tex. 2007); see TEX. FAM. CODE ANN. § 156.001 (West 2014)
(providing that court with continuing exclusive jurisdiction may modify order
providing for conservatorship, support, possession of, or access to child); id.
§ 156.002 (West 2014) (stating that person affected by order or who has standing
to sue under Chapter 102 may file suit for modification); id. § 156.101 (West
2014) (providing grounds for modifying order establishing conservatorship or
possession and access).
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