Texas Divorce Attorney Blog
Texas family law has a rebuttable presumption that it is in the child’s best interest for the parents to be appointed joint managing conservators. Additionally, generally a parent must be named sole managing conservator or both parents named joint managing conservators unless there is a finding such appointment would not be in the child’s best interest because it would significantly impair the health or emotional development of the child. Tex. Fam. Code 153.131.
A maternal great-grandmother recently appealed a modification appointing the father sole managing conservator.
According to the appeals court’s opinion, the parents’ divorce decree in 2016 had named the mother sole managing conservator and the father possessory conservator. A subsequent order appointed both parents temporary joint managing conservators, but gave the great-grandmother sole possession. A subsequent order in 2019 named the mother and great-grandmother joint managing conservators with the great-grandmother having the exclusive right to designate the child’s primary residence. The order stated the father had failed to appear at trial and defaulted. He was appointed possessory conservator.
Modification Proceeding
The mother passed away in March 2020. The grandmother then petitioned for modification to be appointed sole managing conservator. The father also sought to be appointed sole managing conservator.
At the final hearing, the trial court stated the grandmother had a “pretty high” burden to show that there “some pretty significant reason” to place the child with her instead of the child’s parent. The court further indicated it accepted that the child was doing well with the great-grandmother and did not need to hear evidence regarding how well the child was doing. The court further expressed a preference for hearing only from the parties. The great-grandmother’s witnesses, including the child’s teachers, ultimately did not testify.
The child was five years old at the time of the hearing. According to the testimony of both parties, she had lived with the great-grandmother most of her life. They both testified she had lived with the father for nine months. Both testified that after the mother and great-grandmother received custody in 2018, the father only saw the child once that year and twice in 2019.
The trial court ruled in favor of the father, stating his custody would start in early January. The parties were to come up with an agreement or schedule regarding the great-grandmother’s possession periods.
The great-grandmother moved for a stay of the ruling and reconsideration. She asked the court to “reopen the evidence.” She argued the fit parent presumption did not apply and identified several factors that were relevant to determine the child’s best interest.
The trial court denied the motion and signed the modification order, finding the father had established a material and substantial change in circumstances and that it was in the child’s best interest that he be appointed sole managing conservator and the great-grandmother possessory conservator.
The trial court also denied the great-grandmother’s motion for a new trial.
Application of the Fit Parent Presumption
The maternal great-grandmother appealed, arguing the trial court abused its discretion in applying the fit parent presumption. The Texas Supreme Court has also held the presumption applies when a fit parent seeking modification was been appointed managing conservator in the current order. The great-grandmother argued, however, that the fit parent presumption does not apply in a modification proceeding if the parent was not appointed managing conservator in the current order.
The appeals court agreed, noting the legislature did not include the fit parent presumption in modification proceedings. The supreme court has noted that modification suits involve additional policy concerns including stability and ongoing custody litigation.
In this case, the father had not been appointed sole or even joint managing conservator in the divorce decree or the most recent custody order. On two separate occasions, a trial court determined it was not in the child’s best interest to appoint him managing conservator. The appeals court concluded that the fit parent presumption did not apply in this case.
The appeals court went on to conclude, based on statements made by the court and its reluctance to allow the great-grandmother to provide evidence on how the child was doing with her, that the trial court had applied the fit parent presumption. It had, therefore, abused its discretion.
The appeals court was unable to determine if this error probably resulted in the rendition of an improper judgment because the trial court’s fact-finding was influenced by its application of the fit parent presumption. The appeals court noted the trial court may have disregarded or excluded relevant evidence because it was only looking for evidence of the father’s lack of fitness. The appeals court could not determine from the record whether the findings of fact would have been the same if the trial court had allowed evidence and weighed it under the best interest of the child standard instead of focusing only on the question of whether the father was fit.
The appeals court further noted that the trial court had effectively concluded the evidence the great grand-mother wanted to introduce regarding how the child was doing in her care was irrelevant. The appeals court also pointed out that certain statements of the trial court likely affected the evidence the parties chose to present at trial.
The appeals court concluded the error was harmful because it prevented the appeals court from determining if it probably cause an improper judgment. It reversed the trial court’s order and remanded to the trial court for additional proceedings.
Contact a Skilled Texas Custody Lawyer
It can be difficult for a non-parent to overcome the fit parent presumption, but this case illustrates circumstances when the presumption may not apply. If you are a grandparent or other non-parent relative seeking custody, you should consult with the experienced Dallas child custody attorneys at McClure Law Group. Call us at 214.692.8200 to set up a consultation.