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 
2

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.
3

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.
4

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 Dallastreacherous; ensured that W.B. called Shelby during Mark’s 

periods of possession; and provided an itinerary to Shelby when he travelled with 
5

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. 
6

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.”
7

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. 
8

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 
9

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 
10

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. WebbFerebee 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. 
11

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.] 
12

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-ofdiscretion 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).
13

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.
14

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. 
15

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 
16

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. MellorCrummey’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 
17

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. 
18

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 wellregarded 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 
19

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. 
20

Peter Kelly

Justice

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