Under Texas family law, there is a presumption that one or both parents should be named managing conservator of a child in an original suit for custody. If, however, the child’s health or emotional well-being would be significantly impaired, the court may appoint a non-parent if doing so is in the child’s best interest. This presumption can make it difficult for non-parents to gain custody. A mother recently challenged an order giving her child’s paternal grandparents custody.
She appealed the order that appointed her and the child’s paternal grandparents as joint managing conservators, with the grandparents having the exclusive right to designate the child’s primary residence. The trial court had issued that order following a petition to modify a 2013 order that granted the grandparents possession and access to the child.
The trial court titled its order “Order in Suit to Modify Parent-Child relationship.” The court found the child had primarily lived with the grandparents, and they had “had actual care, control, and possession of the child with the voluntary consent of [the mother].” The court also found the mother had been arrested for Battery and Cruelty to a Child in an incident involving her teenage daughter. The court found the mother had a history of drug use and instability. The trial court concluded the mother had relinquished care, control and possession of the child to the grandparents, that appointing her as sole managing conservator or giving her the right to determine the child’s primary residence would significantly impair the child’s physical health or emotional development, and that the modification was in the child’s best interest.
On appeal, the parties argued the grandparent’s petition should be considered an original suit. They argued the 2013 order had not determined conservatorship. The appeals court noted the nature of the petition affected standing. Additionally, the parental presumption only applies in original suits. The grandparents had filed their petition seeking possession and access to the child as an original suit, which resulted in the 2013 order. The 2013 order also ordered the mother to surrender the child to the grandparents for their periods of possession. According to Texas case law, someone with a right to possession of a child has possession and control to the exclusion of even the managing conservator during those periods of possession. The appeals court found that the 2013 order effectively gave the grandparents “temporary and limited custody…” Therefore, the 2013 Order made a custody determination. The grandparents’ petition to modify the 2013 order was therefore a suit for modification.
The mother was not entitled to the parental presumption in a suit for modification. Thus, the order had to meet the requirements for modification. It had to be in the child’s best interest and there had to have been a material and substantial change in circumstances or a voluntary relinquishment of the child by the person with custody to another person for at least six months. Tex. Fam. Code Ann. § 156.101(a). The mother did not challenge the trial court’s finding she had relinquished the care, custody, and control of the child, so the only remaining issue was the best interest finding.
In determining the child’s best interest, courts consider a number of factors. The trial court found the child had primarily lived with the grandparents for about five years, since the child was three years old. The grandmother testified the child had essentially lived with them for the past five years. She testified they provided for and ensured the child had a stable home. The mother testified the child attended elementary school near the grandparents’ home. She agreed the child spent more time with the grandparents than with her in 2017 and 2018, but denied she had done so from 2013-2016. The mother testified the child had been engaged in church and sports activities while staying with the grandparents. The appeals court found the following factors weighed in favor of the grandparents based on the evidence: the present and future emotional and physical needs of the child, the parental abilities of those seeking custody, and the stability of the home.
There was also evidence supporting the court’s findings related to the mother’s arrest for battery and cruelty to a child. There were photographs of the teenage daughter showing a black eye and abrasions. Although the mother denied attacking her daughter, the police report indicated the officer thought she had intentionally caused her daughter’s injuries. The appeals court noted the trial court could have found the officer’s assessment of what happened was more reliable than the mother’s testimony.
The mother testified she had served 2 ½ years in community supervision, ending just a few months before trial. The mother testified she had not failed any alcohol or drug tests during community supervision or the current case. There was evidence, however, that she had delayed her scheduled tests. The appeals court found the factors relating to danger to the child and acts indicating the existing parent-child relationship is not proper also weighed in favor of the grandparents.
The child repeatedly told the attorney ad litem that she wanted to live with her mother. The attorney expressed concern about possible danger to the child due to the mother’s criminal history. She thought the grandparent’s home was more stable, but thought the child should have a connection with both her mother and grandparents. The appeals court noted the factor related to the child’s desire weighed in favor of the mother, but the attorney ad litem’s testimony also supported a finding the other factors favored the grandparents.
The appeals court found there was sufficient evidence for the trial court to exercise its discretion and to support a finding the modification was in the child’s best interest. The appeals court affirmed the trial court’s judgment.
This case shows that it is possible for grandparents to get custody of their grandchildren. If you are a grandparent seeking visitation or custody, you should consult with a skilled Texas custody attorney. Call McClure Law Group at 214.692.8200 to set up an appointment.