It can be very difficult for a non-parent to get custody of a child in Texas custody cases. A presumptive father may, however, have an advantage over other non-parents. In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.
The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.
The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”
Because the child was born during the stepfather’s marriage to the mother and his name was on her birth certificate, the stepfather was the child’s presumptive father. He therefore had standing as a parent and did not need to establish non-parent standing. The adjudication of the child’s parentage did not eliminate his standing.
Under Texas Family Code Section 153.131, the court shall appoint a parent or the parents as managing conservator(s) unless it finds appointment of the parent or parents is not in the child’s best interest because it would significantly impair the child’s physical health or emotional development. Previous case law has held appointment of the parents and a non-parent constitutes an implicit ruling that appointing only the parents would significantly impair the child’s physical health or emotional development.
The appeals court found “ample evidence presented at trial” to support such a finding. The mother testified the father had been physically abusive toward her. Although there is a presumption appointment of the parents as joint managing conservators is in the child’s best interest, it is rebutted by a finding of a history of family violence involving the parents.
The father testified he knew he could have been the child’s father when she was born, but had requested DNA tests in response to the mother’s requests for financial support. He also testified the stepfather should have known the child was not his by December 2014. The appeals court found the trial court could have determined the father knew the child was his at that time and willingly chose not to provide support.
The father testified the mother was suicidal, emotionally unstable, and abused prescription medication. He knew she had been arrested in the child’s presence. There was no challenge of the trial court’s finding the mother’s appointment would significantly impair the child’s development. There had also been testimony that the father intended to return the child to her mother if he got custody. The mother testified their sexual relationship had gone on for years while they were both married and was still ongoing. There was testimony the father consumed alcohol to excess. The mother testified he had been physically abusive toward her. In light of all of this evidence, the trial court could have found a danger of significant impairment of the child’s emotional development if custody was given only to the biological parents.
The appeals court also noted there was evidence the father had conspired with the mother to violate temporary court orders. Those orders did not allow the father or his wife to have possession of the child. The father’s wife testified, however, the mother had let them take the child to their home and that the father had left the child alone with her several times.
There was evidence the child spent time with the father’s wife and daughters. The father and his wife testified the child had become attached to their whole family. They testified they planned to move the child to live with them in their home. The trial court, however, could have believed the mother’s testimony that the father’s home life was unstable and he had told her he planned to divorce his wife and marry her. The trial court could have found that the child’s emotional development would be harmed if she was moved to a new town with her father and step-mother who may have been facing a divorce.
The appeals court found the trial court could have found the father was not currently fit to be managing conservator without the joint appointment of the stepfather. The child had lived with her stepfather nearly her whole life. She called her stepfather “daddy.” Multiple witnesses testified the child should be kept with her mother’s other children and that her life was in the area where her stepfather lived. The trial court could have found separation from her stepfather and sisters would uproot the child her, and significant impairment of emotional development may be inferred from uprooting the child.
The appeals court found the evidence of family violence was sufficient to rebut the parental presumption, so the stepfather had rebutted that presumption by a preponderance of the evidence. The appeals court also found no error in the appointment of the stepfather. The appeals court noted the child’s best interest must be the primary consideration in determining custody and visitation. Even the father testified it was important she continue her relationship with her stepfather and sisters. The stepfather had provided for the child her whole life and she referred to him as her father. The appeals court found sufficient evidence supporting the trial court’s order and affirmed it.
Custody disputes can be very difficult for all parties involved. A skilled Texas child custody attorney can help you protect your rights and your child. Call 214.692.8200 to set up an appointment with McClure Law Group.