Texas Divorce Attorney Blog
Texas family law only allows non-parents to seek custody of children if they meet certain statutory requirements. For example, a grandparent or certain other relatives may petition for managing conservatorship if doing so is necessary because the child’s present circumstances at the time suit was filed would significantly impair their health or emotional development. Tex. Fam. Code Ann. § 102.004(a)(1).
The parents had an on-and-off relationship for several years, according to the appeals court’s opinion. Both parents and the maternal grandmother had lived in Colorado. The mother, who was pregnant with their second child, moved to Texas in late 2017 with the older child. The grandmother followed in 2018. The father remained in Colorado.
The mother was killed in a car accident in May 2019. The father filed a petition for writ of habeas corpus, alleging the grandmother was illegally holding them. His petition was denied.
The grandmother then filed for conservatorship of the children that same month. The trial court ultimately ruled in her favor. The father appealed.
Grandmother’s Standing
The father challenged the grandmother’s standing to seek custody pursuant to Tex. Fam. Code 102.004(a)(1). The appeals court pointed out that there must be a possible or probable nexus between the child’s present circumstances and impairment, such that some specific conduct would probably harm the child.
The grandmother filed her petition about two weeks after the mother died, when both children were less than two years old. Before the mother’s death, the mother and children lived with the mother’s boyfriend in Texas. The father lived in Colorado. According to the court’s opinion, he had never met the younger child and had not seen the older one in over a year. He had not financially supported them since they left Colorado, having evidence of sending about $250 in 2018. He was ordered to pay child support by a court in Colorado in March 2019, but was in arrears. He lived in a one-bedroom apartment.
The appeals court stated that the children’s present circumstances were that they had lost their mother and their father “all but abandoned them physically, emotionally, and financially.” It could be reasonably inferred that they would have experienced significant impairment if their grandmother did not act. She therefore satisfied the elements for standing under Tex. Fam. Code Ann. 102.004(a)(1).
Joint Managing Conservator
The father also argued there was insufficient evidence for the trial court to name the grandmother as a non-parent joint managing conservator.
Generally, a court should name both parents joint managing conservators or one parent sole managing conservators, but there is an exception if such appointment would significantly impair the health or development of the child. Tex. Fam. Code Ann. § 153.131.
The appeals court concluded there was sufficient evidence to support the trial court’s appointment of the grandmother as managing conservator. In addition to the father’s lack of involvement in the children’s lives, there was evidence he had used threatening language toward the grandmother, had taken the children to undisclosed locations when it was not his time to have them, had made false accusations about the grandmother to the Department of Family and Protective Services, and used marijuana before and during visitation. There was also evidence the children would be adversely affected by being moved from their known environment to a place with someone they did not know well. The appeals court concluded the evidence taken together supported the appointment of the grandmother as joint managing conservator.
Restrictions on Father’s Rights
The father also argued the trial court erred in limiting his rights. He argued the trial court erred in granting the grandmother the right to determine the children’s primary residence.
A trial court must designate the conservator with the exclusive right to determine the child’s primary residence, however. Tex. Fam. Code Ann. § 153.134(b). The appeals court again noted the father’s actions were “akin to abandonment.” He had moved in with his mother and siblings, suggesting he did not have a stable home. The appeals court noted he did not seem to have a stable income and evidence suggested he was “aggressive, disrespectful, and/or hostile” to the grandmother. There was also evidence he had take the children out of the state without informing the grandmother, brought them back to her hungry, and did not follow court orders. The grandmother had taken the children to medical appointments and daycare while they were with her. The children, grandmother, and extended family lived in Lubbock, while the father was in Colorado. He had failed to fully use his visitation time and failed to pay child support. Evidence supported the court giving the grandmother the right to designate the children’s residence.
The father also argued the trial court erred by limiting his shorter possession periods to Lubbock County. The order required all periods of possession less than five days to be in Lubbock County, unless the grandmother gave express written permission otherwise.
The trial court had considered how young the children were, how far away the father lived, the lack of relationship, the father’s behavior, the need for the children to build a relationship with the father while keeping their attachment to their primary caregiver, and concerns the father may not adequately care for the children. Additionally, the order allowed the father to seek the grandmother’s permission to remove the children from the county.
The appeals court affirmed the trial court’s order.
Schedule a Consultation with McClure Law Group
It can be very difficult for a non-parent to obtain custody of a child, but, as this case shows, it is possible in some cases. If you are involved in a custody dispute involving a grandparent or other non-parent, the Texas custody attorney’s at McClure Law Group can help. Set up you consultation at 214.692.8200.