Texas Divorce Attorney Blog
Parents generally have a fundamental right to make decisions regarding their children. In Texas, there is presumption that being raised by the parents is in the child’s best interest. This presumption can be rebutted if the court finds appointment of a nonparent is in the child’s best interest and the parent “voluntarily relinquished actual care, control, and possession of the child to a nonparent . . .” for at least a year, with part of that time being within 90 days before the date suit was filed. Tex. Fam. Code 153.373. A grandmother recently appealed a directed verdict in favor of the child’s father in a Texas custody case, arguing he had voluntarily relinquished care, control, and possession of the child to her.
According to the opinion of the appeals court, the child lived with his maternal grandmother after the mother’s death in 2019. The father initially petitioned to adjudicate parentage in April 2021, requesting genetic testing and to be named the child’s sole managing conservator. The grandmother asked for both parties to be joint managing conservators, with her having the exclusive right to designate the child’s primary residence.
The parties signed a Mediated Settlement Agreement for temporary orders (“MSA”) that provided the father was adjudicated the child’s father based on genetic testing and the father would have possession of the child on mutual agreement of the parties, or set periods if the parties did not agree. The court signed the agreed temporary orders.
The father later moved to modify the temporary orders, claiming they were no longer workable. He again sought appointment as the child’s sole managing conservator and the exclusive right to determine his primary residence.
The grandmother alleged the father voluntarily relinquished care, control, and possession of the child for a year or longer, part of which was within the 90 days before she filed her suit. She argued the voluntary relinquishment rebutted the presumption a parent should be appointed managing conservator under Tex. Fam. Code § 153.131.
The grandmother testified the child was born in 2016 and the mother and her children moved to live with her in Texas in 2017 so the mother could receive treatment for glioblastoma. The mother died when the child was just 28 months old.
The father contacted the grandmother in April 2019. He stated he and the mother “planned to take care of things with [the child] and establish his rights as my son. . .” He also indicated he wanted to be a “part of [the child’s] life.”
The grandmother testified he did not see the child in person between February 2019 and April 2021, but spoke with him by phone and FaceTime. She testified the father provided financial support. She also testified genetic testing showed he was the child’s biological father.
The parties agreed on visitation after the mediation. The grandmother testified the father failed to return the child as agreed after Memorial Day weekend, 2022. She went to Washington and participated in court proceedings there, but was allowed to bring the child back to Texas.
The grandmother testified she wanted the child to stay with her and his siblings and that she wanted the father and his wife to be part of the child’s life.
The father moved for a directed verdict, arguing he had been adjudicated the father, the court had found he was “not unfit,” and there was no evidence of voluntary relinquishment.
The grandmother argued she presented sufficient evidence to show the father knew he was the child’s father and the parental presumption had been rebutted because he relinquished actual care, control, and possession.
The trial court stated paternity was established when the court adjudicated the father as the father. The court stated actions before he was adjudicated the child’s parent were “irrelevant” because voluntary relinquishment can only occur from a parent to a non-parent. The trial court concluded the father had not voluntarily relinquished after being established the child’s parent and the grandmother had not overcome the parental presumption. The court granted the directed verdict and awarded the father sole managing conservatorship.
Voluntary Relinquishment
The grandmother appealed, arguing the trial court erred in granting the directed verdict because voluntary relinquishment and rebuttal of the parental presumption are genuine issues of material fact.
The grandmother argued the father had acknowledged the child was his son since the child’s birth, so a jury could have found he voluntarily relinquished the child to her in the time between the mother’s death and when he filed suit.
The father argued that “parent” as defined in the Texas Family Code did not apply to him before he was adjudicated the child’s father. He argued he was only an alleged father until adjudication and could not voluntarily relinquish until he was the child’s parent. The definition of parent in Tex. Fam. Code § 101.024(a) includes a man presumed to the father, legally determined to be the father, adjudicated to be father, and who acknowledged paternity under applicable law.
The father was not a presumed father because there was no evidence he and the mother were married or that he continuously lived with the child during his first two years of life. Tex. Fam. Code § 160.204.
The grandmother did not argue the father had been legally determined to be the child’s father. The trial court established the parent-child relationship between the father and child in its temporary orders on June 21, 2022. The appeals court determined he was not legally determined to be the child’s father before that date. This was also the date he was adjudicated to be the child’s father.
The grandmother argued the father was a “parent” as an acknowledged father because he had acknowledged the child was his son since the birth. A man is a “parent” if he has “acknowledged his paternity under applicable law.” The appeals court noted this requires the man to establish the relationship pursuant to the procedures in Chapter 160, which requires an acknowledgement to be signed or authenticated under penalty of perjury by the mother and the purported father. Tex. Fam. Code § 160.302. There was nothing in the record showing an acknowledgement of paternity had been executed. The appeals court concluded he was not an acknowledged father.
The appeals court agreed with the father’s argument that he was, at most, the child’s “alleged father” before the adjudication. An “alleged father” is defined in Tex. Fam. Code § 101.0015(a) as a man whose paternity has not been established but is alleged to be the child’s genetic father or possible genetic father. The appeals court also agreed that an “alleged father” is not within the definition of “parent” in Section 101.024(a).
The grandmother argued the appeals court should consider other statutes in determining when the father qualified as a parent, specifically those related to ordering retroactive child support and parental terminations.
The appeals court rejected these arguments, noting the parental presumption is based on a parent’s fundamental rights to make decision regarding their children while the child’s best interest is the primary consideration in child support cases. The appeals court also noted the termination procedures specifically apply to the rights of an alleged father.
The appeals court concluded the father did not meet the definition of “parent” pursuant to Section 101.024 before he was adjudicated the child’s father. He therefore could not have voluntarily relinquished care, control, and possession prior to that date such that the parental presumption was rebutted.
Directed Verdict
Generally, a trial court may enter a directed verdict if the evidence presented by the plaintiff does not raise a fact question essential to their recovery or if the evidence conclusively proves a fact that establishes a party’s right to judgment.
The appeals court concluded the grandmother had not presented probative evidence raising a fact essential to her recovery and the trial court had not erred in granting the directed verdict. The appeals court affirmed the trial court’s order.
Seek Legal Advice
This case shows how strong the parental presumption can be. Whether you are a parent or a non-parent seeking custody, an experienced Texas custody lawyer can review the facts of your case and advise you of your options. Call 214.692.8200 for a consultation with McClure Law Group.