Opinion issued April 21, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00964-CV
                            ———————————
                         SHELBY WRIGHT, Appellant
                                         V.
                           MARK BERGER, Appellee


                    On Appeal from the 387th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 12-DCV-199166


                          MEMORANDUM OPINION

      In its final decree of divorce, the trial court appointed Shelby Wright and Mark

Berger joint managing conservators of their eight-year-old son, W.B. Although W.B.

had lived with Shelby in Dallas from the age of two until the age of eight, the trial

court gave Mark the exclusive right to designate W.B.’s primary residence in Fort
Bend County or a neighboring county. The court also gave Mark the exclusive right

to make decisions concerning W.B.’s education, after consultation with Shelby. On

appeal, Shelby argues that the court’s decision was not supported by legally and

factually sufficient evidence, and therefore it was an abuse of discretion.

      We affirm.

                                     Background

      Shelby and Mark married in March 2010, when Shelby was pregnant with

W.B. Shelby moved to Missouri City, Texas shortly before W.B. was born in June

2010. Two years later, Shelby filed for divorce and moved to Dallas with W.B.

      For the following six years, Shelby maintained W.B.’s primary residence in

Dallas, and she and Mark shared custody under temporary orders. They met midway

between their homes to exchange possession of W.B. Mark had possession of W.B.

odd weekends, spring break, and during extended periods in the summer.

      The record demonstrates that both Shelby and Mark are fit parents, and the

court appointed them joint managing conservators.1 The record also demonstrates



1
      According to the record, Shelby was W.B.’s primary caretaker for the first eight
      years of his life. She fed him, bathed him, maintained his routine, and put him to
      bed at night. She made a home for him when they moved to Dallas, enrolled him in
      daycare, and ensured he received medical care as needed and was covered by
      medical insurance. She took him to museums, made crafts with him, and encouraged
      his interest in rock collecting. She also played with him, taught him, travelled with
      him, and promoted his relationships with his grandparents, aunt, and uncle, who
      lived nearby. None of this is disputed.

                                            2
that both Shelby and Mark contributed to the ongoing discord in their relationship.2

Shelby sometimes failed to communicate relevant information in a timely manner,

telling Mark about appointments or events, such as Taekwondo belt testing, after the

fact. Shelby sometimes prevented W.B. from accepting video chats or phone calls

or told him to end the conversation to do chores or take a bath. Shelby informed

W.B.’s school that because she was W.B.’s primary caretaker under the temporary

court orders, any communication it had with Mark had to be shared with her as well.



      The record also reflects that Mark consistently paid child support and shared the
      cost of health insurance for W.B. as well as enrichment activities like Taekwondo
      and Boy Scouts. He remained actively involved in W.B.’s life, traveling to Dallas
      to attend school activities with W.B. or parent-teacher conferences. He called W.B.
      daily by phone or video chat. Mark also promoted a relationship between W.B. and
      Mark’s girlfriend, Jaime Parrish, whom Mark intended to marry, and Jaime’s son,
      who was close to W.B.’s age. Mark travelled with W.B. and engaged in building
      hobbies with him, like playing with Legos and building robots.

      Mark worked with W.B. during his periods of possession on reading readiness
      before kindergarten, and later he ensured W.B. did homework on weekends and
      practiced reading over summer vacation. He also worked with W.B. on math
      fluency. Later, he looked for tools, such as colored overlays, to help W.B. read
      despite his dyslexia. None of these facts are disputed.
2
      The record demonstrates that over the years, Shelby and Mark disagreed about
      parenting and questioned each other about matters such as the choice of pediatrician;
      whether, when, and how to treat minor medical conditions such as rashes; the
      presence in the home of overnight guests; travel plans during extended periods of
      possession; home safety issues, including safe storage of a gun, securing a backyard
      swimming pool, usage of a car seat or a booster seat, use of a space heater in the
      home; and possession or return of items that were given to W.B. before the age of
      two or left at one parent’s house. They also disputed Shelby’s tardiness to exchange
      possession of W.B., disruptions in the schedule due to inclement weather, and
      making up missed visitation time. The existence of these disagreements is not
      disputed.
                                            3
When Shelby’s possession of W.B. was disrupted due to inclement weather, she

sought makeup time, but when Mark’s possession of W.B. was likewise disrupted,

Shelby told him that the court order did not provide for makeup time.

       Mark berated Shelby when she was late to arrive at their midway meeting

point, recorded their conversations at all handoffs, and tracked W.B.’s whereabouts

using an iPad he gave him. Mark frequently criticized Shelby for lack of

communication, but sometimes Mark ignored Shelby and her parents when they all

attended events for W.B. or when exchanging possession of W.B.

       At trial, Shelby testified that Mark was controlling and manipulative; but

Mark acknowledged that Shelby’s communication was sometimes sufficient, and he

expressed regret for having berated her about being late to exchange possession of

W.B.

       Mark supported W.B.’s relationship with Shelby, inviting Shelby and her

parents to W.B.’s birthday parties, which were always during Mark’s period of

extended summer possession. He also invited Shelby to join them and other

members of his family to celebrate Christmas in Colorado; offered to travel to Dallas

to take W.B. to doctor’s appointments; offered to pay for a hotel to allow Shelby and

W.B. to stay near the handoff location when he believed a predicted ice storm made

travelling back to Dallas treacherous; ensured that W.B. called Shelby during Mark’s

periods of possession; and provided an itinerary to Shelby when he travelled with


                                         4
W.B. Because Shelby is a public-school counselor, Mark chose his periods of

extended summer possession to maximize Shelby’s summer vacation time with

W.B.

       By contrast, Shelby made disparaging remarks about Mark to W.B. More than

four months before trial, she told W.B. that Mark wanted him to move to Missouri

City and go to another school. At one point, W.B. told Mark that moving and going

to another school would “ruin my life.” Shelby testified that it would be “just

devastating” to W.B. if he were to move to his father’s house, and she worried W.B.

would fall into a deep depression if that happened. W.B. told Mark that, when he

was with his mother, he felt that his parents did not get along, and W.B. once told

Shelby: “I wish you and daddy would just get along.” Shelby discouraged W.B.’s

growing relationship with Jaime. Shelby testified at trial that Mark called W.B. too

frequently. Shelby and her parents testified that Mark’s periods of possession were

excessive, should be curtailed, and disrupted family routines. Shelby called Mark’s

efforts to work with W.B. on reading over the summer “excessive.” Shelby testified

that W.B. regresses when he is with Mark by sucking his fingers, clinging to a

favorite blanket, and occasionally calling his father “Dada.” She also complained

that Mark “babied” W.B. by continuing to carry him around when he was six years

old.




                                         5
      Shelby, Mark, and other trial witnesses testified that W.B. is a smart boy who

is liked by adults and peers. W.B. struggled during his first few years of school; by

the end of kindergarten, W.B. began to lag behind his peers in reading skills. Shelby

testified that W.B.’s reading was on level in first grade, but his teachers expressed

concern about his lack of focus and distractibility. Shelby sought a referral from

W.B.’s pediatrician for evaluation for attention deficit hyperactivity disorder

(ADHD). Despite Mark’s work with him over the summer, W.B.’s reading level

dropped between the end first grade and the start of second grade. In the fall of

second grade, W.B.’s educators referred him for testing, and he was diagnosed with

dyslexia. The school provided instruction using the Scottish Rite Take Flight

program to address W.B.’s dyslexia.

      Meanwhile, the trial court had appointed Fort Bend area psychologist, Dr.

Cynthia Mellor-Crummey, to complete a custody evaluation. Dr. Mellor-Crummey

met with Shelby four times and with Mark six times. In an email to both parents, Dr.

Mellor-Crummey stated: “I typically meet with parents alone about 4 times each but

I will meet additional times if either parent has concerns they wish to discuss with

me. This option is open to both parents equally and I respond when you reach out to

me with concerns you wish to discuss.” Only Mark availed himself of the offer. At

trial, Shelby testified that Dr. Mellor-Crummey “didn’t explain to me that I had the

opportunity to communicate with her at any time.”


                                         6
      As part of her custody evaluation, Dr. Mellor-Crummey administered

psychological evaluations; accepted letters from their friends, relatives, neighbors,

and coworkers; observed W.B. individually, with Shelby, and with Mark; reviewed

educational assessments from W.B.’s school; spoke to educators from W.B.’s

school; visited the parents’ homes; reviewed W.B.’s medical records; and sought

additional behavioral and educational assessments.3

      Dr. Mellor-Crummey requested additional information, including a

behavioral checklist to be completed by Shelby, Mark, and W.B.’s teachers as a

screening tool for ADHD; vision screening and an eye exam from an

ophthalmologist; and a psycho-educational assessment. At trial, Shelby admitted

that she opposed the behavioral checklists sent to the schools and she initially told

the principal and educators not to fill out the forms. Shelby was reluctant to take

W.B. to see an optometrist, believing the screening by his pediatrician was sufficient.

Shelby opposed the psycho-educational evaluation that was performed by Emily



3
      Dr. Mellor-Crummey produced an 80-page report summarizing her observations
      and the information she reviewed. Dr. Mellor-Crummey attributed the length of time
      that was required to complete the evaluation to difficulty scheduling with Shelby,
      due to inflexibility in her work schedule and the distance between Fort Bend County
      and Dallas. Dr. Mellor-Crummey noted that although Shelby participated in the
      custody evaluation, she was reluctant and at times uncooperative on payment,
      scheduling, not allowing W.B., who was in kindergarten and first grade at the time,
      to miss school to participate in the court-ordered evaluation. She also noted that
      Shelby had concluded that the process was biased against her and “openly expressed
      her frustration and disagreement” with Dr. Mellor-Crummey.

                                           7
Waltmon, M.Ed., and she was skeptical of the results. Waltmon determined that

W.B. had mild-to-moderate dyslexia and mild dysgraphia, a learning disability with

impairment in written expression. Among other things, she recommended that W.B.

be evaluated by an occupational therapist for handwriting issues or fine motor skills.

Shelby opposed an occupational therapy evaluation because the school had not

recommended it. In an email to Dr. Mellor-Crummey, Waltmon recommended that

W.B. attend the Briarwood School if he were in the Houston area. Mark applied for

W.B.’s admission to the Briarwood School, and W.B. was accepted for the following

year. Shelby opposed sending W.B. to the Briarwood School because it specializes

in teaching children with learning disabilities, and she was concerned that W.B.

would be stigmatized.

      Dr. Mellor-Crummey reported that Shelby had lied to her. For example,

Shelby said that Mark did not discuss his concerns about W.B. over the phone with

her. But Mark produced an audio recording of one such conversation that lasted more

than an hour. Dr. Mellor-Crummey concluded Shelby “wants to present a particular

view of her life” with W.B. and distorts or lies about information that would

contradict that view.

      At the beginning of second grade and while Dr. Mellor-Crummey was

completing her custody evaluation, Shelby began taking W.B. to see a licensed

professional counselor, Dr. Kelly Webb-Ferebee, Ph.D. At trial, Shelby


                                          8
acknowledged that she had sought a therapist who would testify in the “current

custody battle” to ensure that W.B.’s best interest was represented. Shelby

continually communicated with Dr. Webb-Ferebee about the ongoing litigation, and

Shelby paid a lawyer to represent the therapist at her deposition. In an email to Dr.

Mellor-Crummey, Dr. Webb-Ferebee described W.B.’s relationship with Shelby in

positive terms. She praised W.B.’s school district as one of the “top . . . in the state.”

She minimized concerns about W.B. possibly having dyslexia, calling his reading

and writing difficulties “[d]evelopmentally” “well within the normal range.” Though

Dr. Webb-Ferebee had not met Mark and had spoken to him only once by phone,

she was “extremely concerned about the possible harmful effects of a custody

battle.” She opined that it would be better for W.B. to ask for a change of residence

when he was older. She warned: “There is no way to measure the likelihood of

serious harm for [W.B.] by forcing a needless change of primary residence at this

time in his life.”

       Dr. Mellor-Crummey described W.B. as “very close to both of his parents”

and she noted that he is “more physically affectionate with his father” but “also very

close to his mother.” She stated: “It is clear that [W.B.] has been well cared for and

raised with love by both of his parents.”

       Dr. Mellor-Crummey recommended that the parents have joint custody and

that Mark be given the exclusive rights, among others, to determine W.B.’s primary


                                            9
residence and to make educational decisions on his behalf. She based her

recommendations in part on conclusions that Mark had been an effective advocate

for W.B. regarding his learning differences, whereas the school and had been more

focused on the possibility of ADHD. Dr. Mellor-Crummey also noted that Shelby

“repeatedly defers to school personnel” regarding W.B.’s “difficulties and needs”

instead of discussing the situation with Mark or making independent decisions. She

also concluded that Mark had promoted and supported W.B.’s relationship with

Shelby, while Shelby sought to curtail W.B.’s time with Mark, hired Dr. Webb-

Ferebee as a therapist for W.B. but ultimately to provide an opinion favorable to her

in this litigation, and spoke ill of Mark to and around W.B.

      Shelby believed that Dr. Mellor-Crummey was biased against her because her

recommendation favored Mark. Shelby also believed that Dr. Mellor-Crummey had

disparaged W.B. when she said that if his learning disabilities were not addressed,

he would grow to hate school.

      After a 15-day bench trial with live and recorded testimony, the trial court

entered a final decree appointing Shelby and Mark joint managing conservators of

W.B. and giving Mark the exclusive right to designate W.B.’s primary residence in

Fort Bend County or a neighboring county, and the exclusive right to make decisions

concerning their son’s education.

      Shelby appealed.


                                         10
                                       Analysis

I.    The standards of review are deferential to the factfinder.

      We review a trial court’s decision regarding conservatorship, including a

determination of which conservator will have the exclusive right to establish the

child’s primary residence and make educational decisions, for an abuse of discretion.

See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie, 644 S.W.2d

449, 451 (Tex. 1982); Compton v. Pfannenstiel, 428 S.W.3d 881, 886 (Tex. App.—

Houston [1st Dist.] 2014, no pet.). A trial court abuses its discretion by acting in an

arbitrary or unreasonable manner or without reference to any guiding rules or legal

principles. K–Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford

v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

      “To determine 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 (1) whether the trial court had sufficient evidence upon which to exercise

its discretion and (2) whether it erred in its application of that discretion.” Smith v.

Payandeh, No. 01-18-00463-CV, 2019 WL 2528197, at *5 (Tex. App.—Houston

[1st Dist.] June 20, 2019, no pet.) (mem. op.). “‘An abuse of discretion does not

occur when the trial court bases its decisions on conflicting evidence,’” or when

there is “some evidence of substantive and probative character to support the trial

court’s decision.” In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.]


                                          11
2017, pet. denied) (quoting In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort

Worth 2010, no pet.)).

      Legal and factual sufficiency are not independent grounds for assertion of

error, but the sufficiency of the evidence is relevant to our determination of whether

the court abused its discretion. Smith v. Karanja, 546 S.W.3d 734, 737–38 (Tex.

App.—Houston [1st Dist.] 2018, no pet.); Stamper v. Knox, 254 S.W.3d 537, 542

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (“In a sufficiency review, appellate

courts apply a hybrid analysis because sufficiency-of-the-evidence and abuse-of-

discretion standards of review often overlap in family law cases.”). Evidence is

legally sufficient when it would enable a factfinder reasonably to form a firm belief

or conviction that its finding is true.4 See In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002). When reviewing the legal sufficiency of evidence on appeal, we consider the

evidence in the light most favorable to the trial court’s judgment. See City of Keller

v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Evidence is factually sufficient when,

considering all the evidence, the judgment is not so contrary to the overwhelming




4
      Evidence is legally insufficient when the record shows that: (1) there is a complete
      absence of evidence of a vital fact, (2) rules of law or evidence bar the court from
      giving weight to the only evidence offered to prove a vital fact, (3) the evidence
      offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes
      conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802,
      810 (Tex. 2005).
                                              12
weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986).

       In a bench trial, the trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Nelson v. Najm, 127 S.W.3d

170, 174 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). When no findings of

fact or conclusions of law are filed by the trial court, we imply that the trial court

made all fact findings necessary to support the judgment. Worford, 801 S.W.2d at

109.

II.    The court’s determination of issues involving conservatorship, access,
       and possession between fit parents is fact intensive and guided by the best
       interest of the child.

       “Suits affecting the parent-child relationship are intensely fact driven, which

is why courts have developed best-interest tests that consider and balance numerous

factors.” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). In reviewing a trial court’s

conservatorship determination, we consider the Legislature’s expressed public

policy 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.

                                          13
TEX. FAM. CODE § 153.001(a); see also Lenz, 79 S.W.3d at 14. The court presumes

that appointment of parents as joint managing conservators is in the best interest of

the child. See TEX. FAM. CODE § 153.131. “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.” Id. § 153.135. Similarly, the

court must specify the rights and duties of conservatorship that each parent may

exercise, and it is not required to award these rights equally or require that they be

exercised jointly. See id. §153.071; Stillwell v. Stillwell, No. 03-17-00457-CV, 2018

WL 5024022, at *4 (Tex. App.—Austin Oct. 17, 2018, pet. denied) (mem. op.).

When parents are appointed joint managing conservators, the court must designate

the parent “who has the exclusive right to determine the primary residence of the

child,” either with or without geographic limitations. TEX. FAM. CODE

§ 153.134(b)(1).

      “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.” Id. § 153.002. “The trial court is given wide latitude in determining the

best interests of a minor child.” Gillespie, 644 S.W.2d at 451. The trial court may

consider a non-exhaustive list of factors in making this determination, though it need

not address all the factors or limit its inquiry to these factors. See Payandeh, 2019

WL 2528197, at *5–6 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.


                                         14
1976)). The Holley factors include: (1) the desires of the child; (2) the emotional and

physical needs of the child now and in the future; (3) the emotional and physical

danger to the child now and in the future; (4) the parental abilities of the individuals

seeking custody; (5) the programs available to assist these individuals to promote

the best interest of the child; (6) the plans for the child by these individuals or the

agency seeking custody; (7) the stability of the home or proposed placement; (8) the

acts or omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one; and (9) any excuse for the act or omissions of the

parent. Holley, 544 S.W.2d at 371–72.

III.   The trial court’s decision to name Mark as the parent with the right to
       designate W.B.’s primary residence and to appoint him exclusive rights
       to make educational decisions was supported by substantive and
       probative evidence.

       On appeal, Shelby argues that the court abused its discretion because its ruling

was not supported by sufficient evidence. She argues that Mark has been controlling,

manipulative, and derogatory. She argues that Mark demanded more information

without taking initiative to gather information for himself. She argues that Mark’s

failure to support her during W.B.’s first two years of life is significant. These

arguments rely on Shelby’s testimony and view of the evidence, which was disputed

by Mark’s testimony and other evidence.

       Our review is limited by two legal standards: (1) because there are no findings

of fact or conclusions of law, we must assume that the court found all disputed facts

                                          15
in favor of its judgment, and (2) the trial court, as factfinder, was the sole arbiter of

the credibility of the witnesses and the weight to be given the evidence. Worford,

801 S.W.2d at 109; Nelson, 127 S.W.3d at 174. What that means here is that we are

not permitted to view the evidence from the perspective that Shelby was truthful and

Mark was not or to rely only on Shelby’s testimony when it is disputed by

substantive and probative evidence to the contrary. Similarly, Shelby’s argument

views certain evidence, which is favorable to her, as most significant, while ignoring

other evidence of a substantive and probative nature that was more favorable to

Mark. The trial court was not required to assign greater weight to Shelby’s testimony

that Mark was controlling, failed to seek information, spoke rudely to her, and failed

to be supportive six-to-eight years before the final divorce decree. Rather, the trial

court had wide discretion to give more weight to the substantive and probative

evidence of Mark’s involvement in W.B.’s life, advocacy for his learning

differences, and encouragement of W.B.’s relationship with Shelby.

      Shelby also argued on appeal that Dr. Mellor-Crummey was biased against

her and in favor of Mark. In particular, Shelby took issue with Dr. Mellor-

Crummey’s providing advice to Mark throughout the evaluation process, her

conclusion that Shelby had lied, her impression that Mark is aware of his faults, the

blame she placed on Shelby for hindering the process, and the conjecture that

appeared through her frequent use of the word “may” in her report. The custody


                                           16
evaluation report is not the judgment, and other evidence of the underlying facts that

Dr. Mellor-Crummey relied on was admitted at trial.

       Finally, Shelby argues that the Holley best-interest factors show that the trial

court’s decree was an abuse of discretion. The Holley factors are not exhaustive, and

not all factors may be relevant in every case. See Smith, 2019 WL 2528197, at *5–

6. In this case, the Holley factors do little to differentiate the abilities of these two fit

parents. Several Holley factors are not relevant in this case which concerns divorced

but fit parents: the emotional and physical danger to the child now and in the future;

the acts or omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one; and any excuse for the act or omissions of the parent.

See Holley, 544 S.W.2d at 371–72. Several Holley factors are neutral because both

parents are fit. Both parents have demonstrated that they can provide for the

emotional and physical needs of W.B. now and in the future. Both parents have

demonstrated competent parenting abilities. Both parents have provided W.B. with

a stable home. Both parents have support systems in place to help care for W.B. For

example, Shelby has used the programs available through the public school to

address W.B.’s dyslexia, and she has relatives nearby who are a support system for

her and W.B. Mark has arranged for W.B. to attend a specialized private school that

can address his dyslexia and dysgraphia, and his nearby friends, including Jaime and

her family, are a support system for him and W.B. Both parents have plans for W.B.


                                             17
to promote his best interest; Mark’s plans include attending the Briarwood School

and continuing his practice of having W.B. call Shelby daily or nearly daily when in

his possession. Shelby’s plans include using the resources available through a well-

regarded public school and continuing visitation with Mark as has become routine

for this family.

      Although W.B. is young—eight years old at the time of trial—the evidence

indicates something about his desires. The evidence shows that W.B. loves and both

Shelby and Mark, and that his desire was for his parents to stop fighting and get

along. The evidence also shows that W.B. was most affected by his parents’ discord

while in his mother’s possession. This weighs in favor of the trial court’s decree.

      Other factors—namely, public policy of the state—are also relevant. The

public policy of this state includes assuring that children have frequent and

continuing contact with divorced but fit parents. Evidence at trial showed that Mark

encouraged and supported W.B.’s relationship with Shelby by ensuring phone calls

when in his possession, inviting Shelby and her parents to birthday parties and other

celebrations, agreeing to makeup visitation when inclement weather disrupted her

periods of possession, and by considering Shelby’s summer vacation when choosing

his extended summer possession in order to maximize Shelby’s time with W.B. The

public policy of the state also includes encouraging parents to share in the rights and

duties of raising their child after the dissolution of the marriage. Shelby and her


                                          18
parents sought to limit Mark’s contact with W.B., whereas Mark supported W.B.’s

relationship with Shelby. Shelby believed that phone calls from Mark were

disruptive, but Mark encouraged W.B. to call his mother. This weighs in favor of the

trial court’s decree.

      Finally, due to W.B.’s learning difficulties, another relevant factor is the

parents’ abilities to advocate for his educational needs. The custody evaluation

process occurred contemporaneously with the educational evaluations of W.B. that

the school initiated. Shelby opposed numerous evaluations and interventions

because they were not specifically recommended by the school, but Mark reached

out to multiple resources to determine what would help W.B. Although Shelby

initially sought a referral for an ADHD evaluation from W.B.’s pediatrician, when

Dr. Mellor-Crummey sent an ADHD screening questionnaire to W.B.’s school,

Shelby directed the school not to cooperate. This, too, weighs in favor of the trial

court’s decree.

                                    Conclusion

      We conclude that the trial court did not abuse its discretion because it had

sufficient evidence on which to base its decision and did not act arbitrarily. We

overrule Shelby’s issue.

      We affirm the trial court’s final divorce decree.




                                         19
                                            Peter Kelly
                                            Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.




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