In the Matter of the Marriage of Tamara Lynn Fraker and Christopher Schubert and in the Interest of D.R.S., a Child v. the State of Texas

NUMBER 13-23-00340-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE MATTER OF THE MARRIAGE OF
TAMARA LYNN FRAKER AND CHRISTOPHER SCHUBERT
AND IN THE INTEREST OF D.R.S., A CHILD

ON APPEAL FROM THE COUNTY COURT AT LAW
OF KERR COUNTY, TEXAS1

MEMORANDUM OPINION

Before Justices Silva, Peña, and Cron
Memorandum Opinion by Justice Cron

At the conclusion of a bench trial in a suit affecting the parent-child relationship,

the trial court appointed appellant Tamara Lynn Fraker (Mother) and appellee Christopher

1 This case is before the Court on transfer from the Fourth Court of Appeals in San Antonio
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001. We are bound by the precedent of the transferring court to the extent that it differs from our own.
See TEX. R. APP. P. 41.3.
Schubert (Father) as joint managing conservators of their child, D.R.S., granted Father

the exclusive right to designate the child’s primary residence, and awarded Mother a

standard possession order. By a single, multifarious issue, Mother challenges the trial

court’s discretionary decision to grant Father the exclusive right to designate the primary

residence of their child. 2 She initially complains that the trial court abused its discretion

by appointing Father as a joint managing conservator in the first instance because the

record contains credible evidence that Father engaged in a history of family violence

against Mother prior to their separation. 3 Building on this premise, Mother argues that the

trial court misapplied the law by failing to consider, among other things, whether Father

overcame the rebuttable presumption that it was not in the child’s best interest for Father

to designate the child’s primary residence.

Alternatively, Mother contends that the evidence was legally insufficient to support

the trial court’s decision to grant Father primary custody because: (1) the trial court

abused its discretion by admitting a custody evaluator’s testimony and report

recommending Father as the primary conservator; and (2) the evaluator’s opinions

amounted to no evidence because they lacked “a reliable factual and foundational basis.”

According to Mother, the trial court gave considerable weight to the custody evaluator’s

unreliable opinions, and this likely caused the rendition of an improper judgment.

Finally, Mother argues that even if she loses on the arguments above, she should

2 Mother also challenges derivative rights assigned to Father as the primary conservator, such as

the right to receive child support.
3 We granted Mother leave to file a supplemental brief in which she raised this additional argument

in support of her overall challenge to the primary residence designation. For organizational purposes, we
have elected to address it first.
2
still have the exclusive “right to consent to medical, dental, and surgical treatment

involving invasive procedures, to consent to psychiatric and psychological treatment, and

to make decisions concerning the child’s education” because she was “D.R.S.’s primary

caretaker during the first 5 years of his life.”

We conclude that Mother waived any complaint about Father being appointed as

joint managing conservator and even invited the purported error by expressly asking the

trial court to appoint both parties as joint managing conservators. We also hold that

Mother failed to preserve the arguments she makes on appeal about the admissibility of

the evaluator’s opinions. We additionally hold that, even if some of her factual

underpinnings were flawed, the evaluator’s ultimate opinion about primary custody was

not incompetent, and the record otherwise supports the trial court’s judgment. Finally, we

hold that the record supports the trial court’s decision to grant both parties independent

parental rights. Accordingly, we affirm the trial court’s judgment.

I. BACKGROUND

The parties married on September 9, 2016, and D.R.S., the only child of the

marriage, was born in February of 2017. The parties separated on February 4, 2018, after

Mother made an allegation of family violence. Mother filed for divorce on February 20,

2018, and Father filed a counter-petition seven days later.

A. Father’s Possession and Access During Suit

Other than a period of temporary reconciliation, Mother was the child’s primary

caregiver throughout the duration of the suit, which, for various reasons, remained

pending in the trial court for nearly five years. Father’s possession and access to the child

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generally expanded over the life of the case:

• At the outset, Mother denied Father any access to the child for approximately six

weeks.

• In April of 2018, the parties agreed to temporary orders that granted Father two

hours of supervised visitation each Saturday.

• Shortly after their agreement, the parties temporarily reconciled and Father had

unlimited possession of, and access to, the child during this period.

• In August 2019, the parties agreed to modified temporary orders that granted

Father possession and access to the child for five hours every Saturday at one of

several public locations. Mother or her designee were allowed to be present at the

location but could not directly supervise or interfere with the visitation.

• In December of 2019, after a contested hearing, the trial court modified the

temporary orders by granting Father unsupervised possession and access every

Saturday from 9:00 a.m. until 6:00 p.m. Father was also granted electronic

communication with the child every Wednesday from 6:30 p.m. until 7:00 p.m. The

parties were also ordered to share “all significant information concerning the

health, education, and welfare of [D.R.S.]”

• In June of 2021, the parties agreed that Father would have possession of the child

every other weekend, standard possession during holidays, and extended

possession during the summer of 2022.

B. Court-Appointed Custody Evaluator

In December 2019, the trial court granted Father’s motion to appoint a child

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custody evaluator. Charlotte Taber, licensed as both a professional counselor and a

marriage and family therapist, was ordered to prepare a written report in accordance with

§ 107.113 of the family code. Among many other instructions, the trial court ordered Taber

to provide her “findings, opinions, recommendations, and answers . . . to the following

questions: Should the parties be appointed as joint managing conservators of the child?

What periods of possession of and access to the child should be ordered for each party?”

The trial court also instructed Taber to consider things like, “Which party is best able to

meet the emotional needs of the child?”

Taber provided the parties with a copy of her written report in October of 2021.

Taber concluded that both parties “are good parents” who love D.R.S. “very much” and

that it was in the child’s best interest “to have both of them in his life.” However, Taber

expressed concerns that Mother was attempting to alienate the child from Father. She

cited evidence that Mother was “degrading [Father] in front of her son.” Taber found “that

[Mother] does not support a strong relationship between [Father] and their son.” She also

observed that “[Mother] seems convinced that she is the sole decision maker in what

relationship [Father] will have with their son.” Taber recommended that the parties be

appointed joint managing conservators, “with extended visitation awarded to [Father].”

But she also explained that her recommendation was constrained by her understanding

that “[t]his particular evaluation is not to determine which parent should designate the

residence of the child,” noting that Father “is seeking standard visitation.”

Two days after the parties received the report, Father amended his petition by

seeking primary conservatorship of D.R.S. Six months later, in April of 2022, Father filed

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a “Motion for Child Custody Evaluation Update,” explaining that the parties were unable

“to settle the child related matters in mediation” and that “[b]y the time this matter reaches

trial, it will have been more than 6 months since the custody evaluator had contact with

the parties.” The trial court granted the motion in May of 2022, finding “that an update to

the child custody evaluation, prior to trial, is appropriate and is in the best interest of the

child.” The trial court also found that “the parties agree[d] to an update to the child custody

evaluation.” Unlike the extensive “Order for Child Custody Evaluation,” the “Order for

Child Custody Evaluation Update” merely ordered Taber to perform “an update to the

child custody evaluation.”

In her updated report, Taber again recommended joint managing conservatorship,

but this time with Father as the primary conservator and Mother with extended possession

and access. She said she did not address the right to designate the primary residence in

the initial report because it was not expressly requested in the appointment order and

because it was her understanding that the issue “was a settled Court matter.” Otherwise,

she “would have recommended that [Father] should designate the residence of the child”

in the initial evaluation. Taber reported that her “concerns about [Mother] that existed a

year ago . . . have continued to develop in ways that are not in the best interest of [the

child].” For example, Taber found that Mother “continues to attempt to dictate every

aspect of how [Father] communicates, spends time and parents their child.”

Taber reiterated her opinion from the original report that Father “is highly credible”

and “continues to exhibit good parenting skills.” She also found that the child “is highly

connected to [Father]” and that the child “has expressed a desire to spend more time with

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him.”

Taber acknowledged that “[c]hanging primary custody is a difficult decision and

one that is not taken lightly” because it has the “the potential to disrupt the stability and

security of the child.” She noted that Mother “is highly involved in her son’s life, education

and extracurricular activities.” She also noted that Mother has the child enrolled in a highly

ranked school and “that the quality of schools carries more weight in custody evaluations

when all things are somewhat equal.” However, Taber expressed her belief “that things

are not equal in this case.” In her opinion, “it would be in the best interest of [the child] to

live primarily with his father in order to give him the ability to avoid traumatic contention

from his parents and continue to thrive.”

During her testimony at trial, Taber explained that, over the course of her twenty-

year career, she has been ordered to perform custody evaluation updates in the past,

especially when the information in the initial report had become stale. Her primary

concern in performing an update is to determine if anything has changed with the parties.

In some of those cases, she reformed her recommendations in the update because a

party’s circumstances had materially changed. In this case, though, she “found that things

were pretty much still the same.” The concerns she expressed about Mother in her initial

report remained.

C. Trial Court’s Rulings

After hearing from several witnesses and admitting numerous exhibits, the trial

court took the matter under advisement. On April 11, 2023, the trial court signed a final

divorce decree that appointed the parties as joint managing conservators, granted Father

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the exclusive right to designate the primary residence of the child, and granted Mother

standard possession of the child.

At Mother’s request, the trial court entered extensive findings of fact and

conclusions of law, including findings that Mother engaged in behavior intended to

discourage a relationship between Father and D.R.S., that Mother took affirmative steps

to keep D.R.S. from having meaningful contact with Father, that Mother engaged in erratic

and abusive communication toward Father, and that Mother had consistently failed to

inform Father about D.R.S.’s medical appointments and extracurricular activities. The trial

court also found that, to varying degrees, all the Holley factors, as well as other factors,

supported its conclusion that it was in child’s best interest for Father to designate his

primary residence and for Mother to have a standard possession order. No post-trial

motions were filed. Mother timely perfected her right to appeal.

II. STANDARD OF REVIEW

“The best interest of the child shall always be the primary consideration of the court

in determining the issues of conservatorship and possession of and access to the child.”

TEX. FAM. CODE ANN. § 153.002. When appointing joint managing conservators, the trial

court is required to designate the conservator who has the exclusive right to determine

the child’s primary residence. Id. § 153.134(b)(1). “[C]onservatorship determinations are

‘intensely fact driven.’” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (quoting Lenz v.

Lenz, 79 S.W.3d 10, 19 (Tex. 2002)). Accordingly, “the trial court is in the best position to

‘observe the demeanor and personalities of the witnesses and can “feel” the forces,

powers, and influences that cannot be discerned by merely reading the record.’” Id.

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(quoting Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)). “A

trial court’s determination of what is in the child’s best interest, specifically the

establishment of terms and conditions of conservatorship, is a discretionary function.” Id.

“With regard to issues of custody, control, possession, child support, and visitation, we

give the trial court wide latitude and will reverse the trial court’s order only if it appears

from the record as a whole that the trial court abused its discretion.” Garza v. Garza, 217

S.W.3d 538, 551 (Tex. App.—San Antonio 2006, no pet.).

Generally, a trial court abuses its discretion when it acts arbitrarily or unreasonably,

or without any reference to guiding rules and principles. In re K.L.C., 672 S.W.3d 734,

743 (Tex. App.—Corpus Christi–Edinburg 2023, no pet.). A trial court’s findings of fact

are subject to the same legal and factual sufficiency standards as jury verdicts. Tex.

Outfitters Ltd. v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019). When a case is tried to the

bench, a party may raise a legal or factual sufficiency challenge for the first time on

appeal. TEX. R. APP. P. 33.1(d).

However, the traditional sufficiency standards of review overlap with the abuse of

discretion standard in family law cases. Garza, 217 S.W.3d at 549. As a result, a legal

sufficiency challenge is not an independent ground of reversible error. Id. Instead, it

constitutes a factor relevant to our assessment of whether the trial court abused its

discretion. Id. Thus, in considering whether the trial court abused its discretion because

the evidence is legally insufficient, we apply a two-prong test: (1) did the trial court have

sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in

its application of that discretion? Id. A trial court does not abuse its discretion if there is

9
some evidence of a substantive and probative character to support the decision. In re

K.L.C., 672 S.W.3d at 743.

In determining whether there is legally sufficient evidence to support a finding, we

examine the record in the light most favorable to the finding, credit evidence favorable to

the finding if a reasonable factfinder could, and disregard evidence contrary to the finding

unless a reasonable fact finder could not. Hinkle v. Hinkle, 223 S.W.3d 773, 778 (Tex.

App.—Dallas 2007, no pet.). Anything more than a scintilla of evidence is legally sufficient

to support the finding. Id. In conducting our review, we are mindful that the factfinder is

the sole judge of the credibility of the witnesses and the weight to be given to their

testimony. Id. We may not substitute our judgment for that of the factfinder’s, even if we

would reach a different answer on the evidence. Id.

Likewise, we review a trial court’s decision concerning the admissibility of

evidence, including whether expert testimony is reliable, for an abuse of discretion.

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). “But a party may assert

on appeal that unreliable scientific evidence or expert testimony is not only inadmissible,

but also that its unreliability makes it legally insufficient to support a verdict.” Id. Even if a

trial court errs in admitting evidence, we will reverse the judgment only if the error

“probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a). In

applying this standard, we consider “the role the evidence played in the context of the

trial.” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008). When

erroneously admitted evidence “was crucial to a key issue, the error was likely harmful.”

Id. On the other hand, the erroneous admission of evidence that is merely cumulative of

10
properly admitted evidence is generally harmless. Jackson v. Takara, 675 S.W.3d 1, 7

(Tex. 2023).

III. JOINT MANAGING CONSERVATORS

Mother first complains that the trial court abused its discretion by appointing Father

as joint managing conservator because the record contains credible evidence that Father

engaged in a pattern of family violence against Mother prior to their separation. 4 See TEX.

FAM. CODE ANN. § 153.004(b) (providing that a trial court “may not appoint joint managing

conservators if credible evidence is presented of a history or pattern of

past . . . physical . . . abuse by one parent directed against the other parent”). She points,

for example, to several admissions Father made to Taber, including that, prior to the

parties’ separation, he punched holes in a wall, threw food at a restaurant, and

intentionally broke Pyrex on the floor. Father largely admitted to these incidents at trial

but denied that any of those actions were directed at Mother. Although the trial court

specifically found an absence of family violence, Mother contends that the record

conclusively establishes the opposite. This mistake, according to Mother, had a

cascading effect because the trial court failed to apply the statutory presumption that it

was not in the child’s best interest to designate Father as the primary conservator. See

id. As a threshold matter, we conclude that Mother waived this issue and even invited the

purported error. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (observing that “error

preservation in the trial court . . . is a threshold to appellate review”).

4 We note that there were also allegations that Mother committed family violence against Father.

For example, Taber interviewed a witness who reported “that he has seen [Mother] slap and punch [Father]
in the face and chest on at least six occasions.” Ultimately, the trial court did not make a finding of family
violence against either party.
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Generally, to preserve error, a party must present to the trial court a timely request,

objection, or motion sufficiently stating the specific grounds, if not apparent from the

context, for the desired ruling. TEX. R. APP. P. 33.1(a)(1). Further, the party must obtain

an express or implicit adverse ruling or object to the trial court’s refusal to rule. Id. R.

33.1(a)(2). Likewise, under Rule 103 of the Texas Rules of Evidence, error may not be

predicated upon a ruling which admits or excludes evidence unless a timely objection or

motion to strike appears on the record, stating the specific ground of objection, if the

specific ground was not apparent from the context. TEX. R. EVID. 103(a)(1). Finally, “a

party cannot complain on appeal that the trial court took a specific action that the

complaining party requested, a doctrine commonly referred to as ‘the invited error’

doctrine.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (quoting Ne. Tex.

Motor Lines v. Hodges, 158 S.W.2d 487, 488 (Tex. 1942)).

When Mother filed her original and only petition for divorce in February of 2018,

she alleged that it was in the child’s best interest that she “be appointed sole managing

conservator.” She expressed the same view to Taber during the initial evaluation.

However, by the time this case was finally tried in December of 2022, Mother had changed

her position. During her testimony, Mother confirmed that “joint managing conservatorship

is the kind of conservatorship that should be awarded in this case.” At the conclusion of

trial, the court asked each party to file a summary of the relief they were requesting.

Mother’s filing reaffirmed her position that “[t]he parties should be appointed parent joint

managing conservators.” Mother did not argue during trial, or in any post-trial motion, that

Father was prohibited from being appointed as a joint managing conservator under

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§ 153.004(b).

Consequently, Mother has not preserved this issue for our review. See Martinez v.

Martinez, 157 S.W.3d 467, 471 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(concluding that appellant failed to preserve issue of whether joint managing

conservatorship conflicted with § 153.004 because “[n]o mention of any of the provisions

in [§] 153.004 was made by either party in the court below”); see also In re Marriage of

Roberson, No. 05-07-01061-CV, 2008 WL 4868345, at *1–2 (Tex. App.—Dallas Nov. 12,

2008, no pet.) (mem. op.) (same). Moreover, having requested the very relief in the trial

court that she now complains about on appeal, Mother is estopped from raising this issue

under the doctrine of invited error. See Tittizer, 171 S.W.3d at 862; see also In re A.S.Z.,

No. 02-07-00259-CV, 2008 WL 3540251, at *2 (Tex. App.—Fort Worth August 14, 2008,

no pet.) (per curiam) (mem. op.) (holding that father could not complain on appeal about

trial court’s conservatorship decision because father “agreed to these provisions at trial”).

Mother’s first argument is overruled.

IV. EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE

Mother next complains that, even if joint conservatorship was appropriate, the trial

court abused its discretion by selecting Father over Mother as the primary conservator.

See TEX. FAM. CODE ANN. § 153.134(b)(1). She focuses her fire on Taber’s evaluation,

first arguing that the trial court abused its discretion by admitting her testimony and

updated report because: (1) Taber exceeded the scope of the trial court’s order; and

(2) Taber failed to perform the basic elements of an evaluation while conducting her

update. She next argues that, even if those arguments were not preserved, Taber’s

13
opinions were legally insufficient, and therefore, the record does not support the trial

court’s decision.

A. Applicable Law

The general purpose of a custody evaluation is to gather relevant information

concerning issues of conservatorship and possession and make a recommendation to

the trial court regarding the best interest of the child. See TEX. FAM. CODE ANN.

§ 107.101(1). “A person may not offer an expert opinion or recommendation relating to

the conservatorship of or possession of or access to a child at issue in a suit unless the

person has conducted a child custody evaluation” as provided for in the family code. Id.

§ 104.008(a). In that regard, the custody evaluator must perform “each basic element of

a child custody evaluation as specified” in the family code “unless the failure to complete

an element is satisfactorily explained.” Id. § 107.109(a). These basic elements include

personally interviewing the parties; interviewing the subject child during a party’s period

of possession if the child is at least four years of age; observing the child, regardless of

age, in the presence of each party; obtaining relevant information from collateral sources,

including school records, mental health records from each party, records from the Texas

Department of Family and Protective Services, and criminal history information relating

to the parties or any person living with a party; and assessing the relationship between

the child and the parties. Id. § 107.109(c). To omit one of these basic elements from the

evaluation, the evaluator is required to identify the missing element in the report, explain

why the element was not completed, and explain the effect of the missing element on the

evaluator’s opinion. Admission of a custody evaluation at trial “is subject to the rules of

14
evidence.” Id. § 107.114(a).

“A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.” TEX. R. EVID. 702. In general, the opinions of

expert witnesses are not binding on the factfinder even when they are uncontroverted.

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex. 1998). “If the

foundational data underlying opinion testimony are unreliable, an expert will not be

permitted to base an opinion on that data because any opinion drawn from that data is

likewise unreliable.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.

1997); see TEX. R. EVID. 705(c). Stated differently, opinion evidence is not probative “if it

lacks a factual basis or is made in reliance on a basis that does not support the opinion.”

Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 717 (Tex. 2016). “Expert

testimony is [also] unreliable ‘if there is too great an analytical gap between the data on

which the expert relies and the opinion offered.’” Gharda USA, Inc. v. Control Sols., Inc.,

464 S.W.3d 338, 349 (Tex. 2015) (quoting Volkswagen of Am., Inc. v. Ramirez, 159

S.W.3d 897, 904–05 (Tex. 2004)). “Regardless of the manner in which we determine

reliability, we do not decide whether the expert’s opinions are correct; rather, we

determine whether the analysis used to form those opinions is reliable.” Id.

In some cases, expert testimony is necessary to support a judgment because the

subject matter is outside the common understanding and experience of the factfinder.

See, e.g., id. at 348 (“We have consistently required expert testimony and objective proof

15
to support a jury finding that a product defect caused the plaintiff’s condition.” (collecting

cases)). This is not one of those cases. Trial courts are routinely called upon to make

conservatorship determinations without the aid of expert testimony. In other words, the

circumstances that influence best-interest determinations are within the common

understanding and experience of trial courts. See id. (“Proof other than expert testimony

will support a jury finding only when the jurors’ common understanding and experience

will allow them to make that finding with reasonable probability.”); Peck v. Peck, 172

S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied) (“Wife testified that, in her opinion,

the kind of overnight visits prohibited by the injunction were not in the best interest of the

child; Husband disagreed. The trial court was charged with making the decision based

upon that testimony, but also upon his experience with and understanding of the

individuals involved and their circumstances.”).

B. Statutory Admissibility Arguments Not Preserved

Mother contends that the trial court should have excluded Taber’s testimony and

updated report recommending Father as the primary conservator because that question

was not specifically identified in the appointment order and because Taber did not perform

all the basic elements of an evaluation when she conducted her update. 5 See TEX. FAM.

CODE ANN. §§ 107.103(c)(5) (providing that the appointment order must include “the

specific issues or questions to be addressed in the evaluation”), 107.109(c) (listing basic

elements of an evaluation). These arguments do not match Mother’s trial objections, and

5 Mother does not complain that Taber’s original report, which was also unfavorable to Mother,

suffered from the same deficiencies. Instead, Mother contends that an updated report must conform to
every basic element of an evaluation under the family code, whereas Taber treated the update as a mere
supplement to her original report.
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consequently, we do not reach them. See Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—

San Antonio 2012, no pet.) (“In order to preserve error for appellate review, a party’s

argument on appeal must comport with its argument in the trial court.” (collecting cases)).

Mother claims that she first “objected to Taber’s updated report” during her opening

statement. Not so. Knowing that Taber’s recommendations would be unfavorable to her,

Mother merely previewed her argument for why the trial court should discount Taber’s

evaluation:

I’m going to tell the Court that I do not intend to sponsor in any way the
testimony, the work, or the results and recommendations of Charlotte
Taber, except to say one thing. There were two evaluations done in this
case. An early one in October of 2021, where we believe the evidence is
going to show Charlotte Taber recommended that [Mother] is going to be
the primary caretaker, and that [Father] was going to have expanded
visitation schedule.

An updated report was ordered by this Court in spring of 2022. We
believe as a result of—well, stated another way, we believe that this report
has some deficiencies and inadequacies that justif[y] the Court in dismissing
it as to its findings and recommendations. And we intend to show the Court
the reasons that that should be done. So we’re going to ask the Court to
pay special attention not only to the testimony of each of these parties, but
primarily the testimony of Charlotte Taber.

Asking the trial court as a factfinder to “pay special attention” to an expert’s testimony

because you “intend to show” the “deficiencies and inadequacies” in the expert’s report

is not tantamount to asking the trial court to perform the judicial function of ruling on the

admissibility of the report, especially in the context of an opening statement. Even if it

was, Mother’s vague allusion to the report’s “deficiencies and inadequacies” did not alert

the trial court to the specific statutory grounds she raises on appeal. See TEX. R. EVID.

103(a)(1); TEX. R. APP. P. 33.1(a)(1)(A). Moreover, Mother did not obtain a ruling or object

17
to the lack of a ruling. See TEX. R. APP. P. 33.1(a)(2).

Later, when Father called Taber and offered her as an expert, Mother made the

following objection:

[COUNSEL]: I’m going to object to her being tendered as an expert.
I don’t believe that she’s shown to be credentialed
sufficiently to be accepted as an expert at this time.

THE COURT: Is there something specific you’re looking for,
[counsel]?

....

[COUNSEL]: No. I’m—I don’t want to be in a position of educating
[Father’s] [c]ounsel. But my objection is that she
doesn’t reach the standard, based on what an expert is
supposed to be in this particular case to be accepted
as an expert by the Court. So I’m going to object at this
time.

THE COURT: Okay. Court’s going to overrule the objection.

Whether a person is qualified to perform a custody evaluation, and therefore render an

expert opinion, is a discrete question under the family code. For example, the person

must have “at least a master’s degree from an accredited college or university in a human

services field of study and a license to practice in this state as a social worker,

professional counselor, marriage and family therapist, or psychologist.” TEX. FAM. CODE

ANN. § 107.104(b)(1). The person must also have certain practical experience or perform

the evaluation under the direct supervision of a qualified evaluator. 6 Id.

§ 107.104(b)(1)(A)–(B), (2). Mother’s trial objection that Taber was not properly

6 We note that Taber testified that she has a qualifying master’s degree, two qualifying licenses,

had trained under a qualified custody evaluator, is an approved custody evaluator in Bexar County, and
had been performing custody evaluations for twenty years.
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“credentialed” as an expert “in this particular case” does not comport with the arguments

she raises on appeal. See Watts, 396 S.W.3d at 23.

Finally, when Father offered the updated report into evidence, Mother objected to

the report “based on a lack of authentication.” That objection was also overruled, and the

updated report was admitted into evidence.

In sum, Mother forfeited the statutory arguments she now raises for the first time

on appeal regarding the admissibility of Taber’s testimony and updated report. See id.

Her second argument is overruled.

C. Taber’s Opinions were Not Incompetent

Mother argues in the alternative that the record was legally insufficient to support

the trial court’s decision because “[t]he underlying data, facts, and assumptions Taber

relied on were unsound and thus her opinion lacked probativeness.” Mother takes

particular exception to Taber’s conclusion in her updated report that Mother “lied about

domestic violence and attained temporary primary custody under false pretenses,” which

Taber believed was detrimental to D.R.S. because he was unnecessarily separated from

Father during his toddler years. Mother contends that this conclusion was fundamentally

flawed, not only because the record supported a finding of family violence, but also

because the record reflects that Father initially agreed to different forms of limited

visitation. Mother notes that their separation was precipitated by her allegation of family

violence, and she contends that Father’s willingness to agree to limited visitation

afterwards revealed a guilty conscience. Mother argues that this erroneous conclusion

that Mother “lied about domestic violence” infected Taber’s entire evaluation and caused

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Taber to unfairly fault Mother for certain conduct that Father was equally guilty of. Mother

also argues that some of her behavior that Taber found concerning should have been

excused because it was consistent with someone who had been a victim of domestic

violence.

Even if we assume that some of Taber’s concerns were unfounded, Taber had

many other concerns about Mother’s behavior that shaped her ultimate opinion, and some

of those concerns were based on undisputed facts. For instance, Taber reviewed text and

email exchanges between the parties where Mother used her control over Father’s limited

access to D.R.S. as both a carrot and a stick to extract concessions from Father or punish

him for perceived slights. Notably, Mother voluntarily provided these exchanges to Taber,

and they were admitted into evidence at trial. It was also undisputed that, in an attempt

to manipulate Father into reconciliation, Mother engaged in self-harm while D.R.S. was

in her care. Taber cited these as examples of Mother “putting her own needs over that of

her son and using her son to gain control in reconciling her relationship with [Father].” We

fail to see any “analytical gap” between these undisputed facts and Taber’s conclusion.

See Gharda USA, 464 S.W.3d at 349. In any event, the trial court was free to draw its

own conclusions from these undisputed facts, see Uniroyal Goodrich, 977 S.W.2d at 338,

and we are required to view the evidence in the light most favorable to the trial court’s

judgment. See Hinkle, 223 S.W.3d at 778.

Taber also raised concerns that Mother tried to dictate Father’s parenting style and

cited several examples of this behavior. Taber explained that “it is imperative that [Mother]

allow [Father] to parent his way” because “[p]arents who are divorced co-parent better

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when they respect the abilities of each parent.” Finally, and perhaps most importantly,

Taber believed that Mother had engaged in a pattern of alienating behavior. Among other

examples, this behavior included Mother’s admission that she told D.R.S. that Father did

not love him when the child was a toddler, Mother talking down to Father in front of D.R.S.,

and Mother instructing D.R.S. to refer to Father as “Chris dad” after she became

romantically involved with another man. Poisoning a child’s mind against a parent is not

in the child’s best interest. See Allen v. Allen, 475 S.W.3d 453, 458 (Tex. App.—Houston

[14th Dist.] 2015, no pet.) (“[P]ersistent alienation of the other parent can be a guiding

consideration in making possession and access determinations.”); In re Marriage of

Chandler, 914 S.W.2d 252, 254 (Tex. App.—Amarillo 1996, no writ) (explaining that

“changes which may injuriously affect the child’s best interest” include “poisoning the

child’s mind against a parent”). Therefore, Taber’s recommendation cannot be distilled

down to her conclusion that Mother “lied about domestic violence.” It was also based on

other well-documented concerns, as well as her positive evaluation of Father’s parenting

skills and the child’s expressed desire to spend more time with Father.

In considering each parent’s prior involvement in the child’s life, the trial court

found:

The custody evaluations admitted into evidence and the testimony elicited
at trial establish that [Mother] has made significant and persistent efforts to
minimize [Father’s] role in the child’s life. The history of this conduct by
Mother indicates that the conduct will likely persist, as it was happening as
recent[ly] as the time of the child custody evaluation update, and would
likely prevent [the child] from having a meaningful relationship with [Father].

We conclude that this finding is supported by legally sufficient evidence. Based on this

finding, we also hold that the trial court did not abuse its discretion because there is some

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evidence of a substantive and probative character to support the trial court’s decision to

designate Father as the primary conservator. See In re K.L.C., 672 S.W.3d at 743. In

truth, the record is replete with other evidence, when viewed in the proper light, that also

supports the trial court’s judgment. We have only highlighted the quantum of evidence

necessary to the disposition of this appeal. See TEX. R. APP. P. 47.1. Mother’s third

argument is overruled.

V. INDEPENDENT RIGHTS

Finally, Mother submits that, irrespective of how we resolve her arguments above,

she should have the exclusive “right to consent to medical, dental, and surgical treatment

involving invasive procedures, to consent to psychiatric and psychological treatment, and

to make decisions concerning the child’s education.” The trial court granted both parents

the independent right to make these decisions. See TEX. FAM. CODE ANN. § 153.134(b)(4)

(providing that, when appointing joint managing conservators, the trial court shall “allocate

between the parents, independently, jointly, or exclusively, all of the remaining rights and

duties of a parent as provided by Chapter 151”). According to Mother, there is legally

insufficient evidence to support the trial court’s decision to grant these independent rights

to Father because “it is undisputed that [Father] was not D.R.S.’s primary caretaker during

the first 5 years of his life.”

Mother’s argument is indicative of Taber’s concern that Mother “continues to

attempt to dictate every aspect of how [Father] . . . parents their child.” The trial court

shared this concern, specifically finding that “[t]he history of this case details an

irreconcilable parental relationship laden with [Mother’s] anger and skepticism of [Father]

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despite [Father’s] desire to have a co-parenting relationship[.] [T]he parties appear unable

to communicate to reach shared decisions about [D.R.S.].” This finding is supported by

the record, and therefore, the trial court did not abuse its discretion by granting

independent rights to each parent. Mother’s final argument is overruled.

VI. CONCLUSION

Based on our review and consideration of the entire trial record, we conclude that

the evidence is of sufficient and probative character to uphold the trial court’s decision to

designate Father as the conservator with the exclusive right to designate the primary

residence of the child. We affirm the trial court’s judgment.

JENNY CRON
Justice

Delivered and filed on the
24th day of July, 2025.

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