Vexatious Litigants in Family Law

In the legal context, the word “vexatious” describes a legal action or the bringer of an action (a litigant or petitioner) that is brought without sufficient legal or factual grounds, purely to annoy or harass the other party.

In family law, the term more commonly used for this type of lawsuit is “frivolous.” 

Vexatious litigation can also happen in a valid lawsuit if a party files meritless motions that are repetitive, burdensome, and unwarranted. 

If a nonparent has intervened or filed a request for custody or visitation in your custody case, then the nonparent’s action may be considered vexatious. A nonparent must prove a parent is unfit to proceed in these types of cases. The burden is very high for the nonparent. Texas courts have not fully addressed whether these situations are frivolous since the Texas Supreme Court case In re C.J.C.

To read more about custody disputes between a parent and nonparent, read Custody Disputes Between a Parent and Nonparent in a Modification. If you believe the nonparent has become involved to harass you, talk to a lawyer.

Discovery is the process of getting evidence about a case from the other side. Depending on the case, there are limits to discovery. Both sides have specific requirements when turning over the evidence and discovery responses. Read about Discovery in Texas to learn more of the entire process.

Generally, discovery is not considered frivolous or meant to harass the other party because many facts are discoverable. Parties can use this evidence to support or defend their claims. 

Sometimes, a parent may use discovery to burden the other parent. There are some objections to discovery requests that address any request that may be “unduly burdensome.” Responding to discovery, including objecting to requests, can be difficult. If you have questions about discovery in your case, talk to a lawyer.

Even if you think discovery requests are frivolous or meant to harass, you cannot misuse the discovery process by not responding at all. You still must comply with discovery requests. The court can consider discovery disputes.

Some parents will use continued litigation as a tool against the other parent. They may file a frivolous lawsuit for several reasons. They may know the other parent does not have the financial means to defend the case. They may use vexatious litigation to wear the other parent down, impact the other parent emotionally, or as a form of parental alienation. 

The most common vexatious lawsuit in family law is modification. Some parents may not like the outcome they had when establishing their prior court order. A parent may think they can file a modification suit later to “fix” any issue they did not like, but this is not true. A parent first must satisfy the legal standard showing a material and substantial change. The parent must also establish the requested change is in the child’s best interest.

Another limit to modifying: Was the change in circumstances contemplated in the prior order? For example, requesting to modify solely based on a child’s aging is not enough to satisfy the “material and substantial change” standard. Parents know or contemplate that their children will continue to age. The court can consider a child’s age, but age cannot be the only factual basis for modifying. 

If parents agreed to their prior order, filing a modification suit without the facts or legal standard to support the request may also be frivolous–especially if the agreement was recent. Because these cases depend on facts and circumstances, the court will require a hearing to listen to evidence before determining if the lawsuit is vexatious.

If one parent files lots of motions to “paper down” the other party, that could be considered vexatious.

Some of these motions are not always appropriate in all family law cases and are usually reserved for highly contested cases. Some examples are motions for:

• Appointment of an ad litem (guardian, attorney, or amicus),
• Child custody evaluation,
• Psychological evaluation,
• Entry on a property, or
• Drug or alcohol testing of a parent.

In deciding to consider these requests, the court will consider the child’s best interest, the parties’ resources, and the disputes in the case. Chapter 107 of the Texas Family Code addresses special appointments in Texas family law cases.

If you think the filing parent filed a frivolous lawsuit meant to harass you, file a motion asking the judge to deny the parent’s requests. You can do this in an original answer. Read How to File an Answer in a Family Law Case for how to do this.

You can also file a separate document called a Motion to Deny Relief and Motion for Sanctions. Your motion must describe the specific conduct of the other party and explain why the lawsuit is being presented for any improper purpose–including to harass or to cause unnecessary delay or needlessly increase the cost of litigation. See Texas Civil Practice and Remedies Code 10.001(a).

Talk to a family law attorney about helping draft these legal documents. Some attorneys offer limited scope representation in which a client pays for certain legal services, like drafting legal documents. 

If you need help finding a lawyer, you can: 

• Use our Legal Help Directory to search for a lawyer referral service, legal aid office, or self-help center in your area. 

• Check our Legal Events and Clinics page for free legal clinics in your area. 

• Use Ask A Question to chat online with a lawyer or law student. 

Courts presume that parties file all pleadings, motions, and other papers in good faith. If the court determines a party filed a frivolous modification suit or filed to harass the other party, the judge has the choice to order the offending litigant to pay the other side’s attorney’s fees. Texas Family Code 156.005.

By signing a pleading, motion, or other legal documents, a pro se litigant is certifying the document is not groundless, brought in bad faith, or brought for harassment. “Groundless” means there is no basis in law or fact and is not warranted by a good faith argument to extend, modify, or reverse existing law. A court can sanction a litigant who signed a pleading violating Texas Rule of Civil Procedure 13. The “sanctions” may order the offending party to pay the other party’s attorney’s fees to discourage similar bad-faith lawsuits in the future. See Texas Rule of Civil Procedure 13.

Additionally, a court can sanction the party who signed a pleading, motion, or another legal document under Texas Civil Practice and Remedies Code 10.004(a).

If you need a court order to prove you are the legal father of a child, then you must file a paternity lawsuit. You must also file a paternity suit if you need to prove you are not the legal father. If the mother of a child files a suit or multiple suits with multiple alleged fathers, the court will not find those actions frivolous. Texas policy serves the child’s best interest, and that interest includes establishing the child’s legal father.

If you and the other parent were never married, are separating, and have no existing court order, then either parent can file a suit affecting the parent-child relationship (SAPCR). A SAPCR asks a judge to make orders for custody, visitation, child support, medical and dental support, and any other orders for your child. Review and use the guide I need a custody order. I am the child's parent (SAPCR) if you need to file for custody, visitation, child support, medical support, and dental support orders.

If you and the other parent are divorcing, then either parent can file for divorce. In a divorce, the judge can make orders for custody, visitation, child support, medical and dental support, and any other orders for your child.

A divorce is different from a SAPCR because, in a divorce, the judge can also make orders to divide spouses’ property and debt. There are a few different guides you can choose from for your divorce:

• I need a divorce. We do not have minor children.

• I need a divorce. We have children under 18.

• I need a divorce. We have minor children. A final custody and support order is already in place.

• My spouse filed for divorce.

A modification lawsuit lets a parent ask for changes to any child-related issue(s) in their current court order. Some modification lawsuits are appropriate if the filing party has sufficient legal or factual claims to support their claims. The judge can only change your order if the requested change is in your child’s best interest.

To change the order, the judge must also find that there has been a material and substantial change of circumstances for the child, a conservator, or someone affected by the current order. Texas Family Code 156.101.

The law does not explicitly say what else qualifies as a “material and substantial change in circumstances.” However, many court decisions talk about this. Although you can conduct legal research, you need to speak to a lawyer.

Enforcement lawsuits are appropriate if the filing party has sufficient evidence to prove the other parent is violating the current court order. You can file an enforcement action if you think the other parent will keep violating the court order.

Adoptions with minor children, or adult adoptions, are generally not considered frivolous. Lawsuits to terminate parental rights are not usually frivolous–but could be, depending on the circumstances. For example, if a parent wants to terminate their parental rights to avoid child support, a court may find that lawsuit vexatious.

Adoptions and termination lawsuits can be complex and technical. If you are involved in one of these kinds of suits, you should talk to a lawyer.

Requests for mediation, arbitration, or other types of alternative dispute resolution are encouraged by Texas courts and are not likely to be considered frivolous requests.