Sometimes one or both parents move after a custody order is issued. When parents move, they often want to modify custody and visitation. However, if both parents have moved out of state, issues of jurisdiction may arise. In a recent case, a father sought a Texas custody modification of a North Carolina custody order.
Texas custody disputes usually involve the children’s parents. When both parents unexpectedly pass away, however, their families may fight over who gets guardianship of the children. Generally, if the parents did not designate a guardian, a grandparent would be awarded guardianship. If multiple grandparents seek guardianship, then the court will appoint one of them, considering the circumstances and child’s best interest. If no grandparent seeks guardianship, then the court will appoint the next of kin, considering the circumstances and the child’s best interests if there are multiple people with the same degree of kinship. Tex. Est. Code Ann. § 1104.052. A minor who is at least 12 years old may be able to select a guardian, if the court finds the selection is in the child’s best interest and approves. Tex. Est. Code Ann. § 1104.054.
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.
Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met. First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child. Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being. Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child. TEX. FAM. CODE ANN. § 153.433.
In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children. The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California. The grandparents supported the family so the parents could save up to buy the home. After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight. The grandparents would take the children to school and attend school functions. The grandmother testified she felt she had assumed the role of parent.
The grandmother testified both parents were alcoholics. The mother’s friend testified the parents had a tense and unhealthy relationship. There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense. The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies. He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.
In a recent Texas appellate case, paternal grandparents wanted the court to order a mother to give them access to their grandchild. The case arose after a couple married in 2004 and had two children in the subsequent years. The father died, and at the time of his death, the kids were three and two years old.
Before the father died, his parents had regular visits with the kids. The paternal grandmother cared for one of the kids for 15 months, while the mother prepared for a teaching career. The two kids started daycare after the second was born, but the grandparents transported them to activities. During the week, the grandparents had dinner with the parents and the older child. After the second child was born, the grandmother made them dinner, including special foods due to the older child’s food allergy.
After the father died, the grandparents and the mother had a conflict. The mother testified she thought the house where the father and kids lived was a gift. She learned after the father’s death that a deed of trust securing a note that the grandmother held encumbered the house. There may have been a disagreement about who owned a vehicle. The grandparents sued the mother in connection with the property disputes, but the kids had continued having visits after the father’s death until the holidays of 2012. The grandmother later testified that after they gave each other Christmas gifts, the mother told the grandparents they wouldn’t see their grandchildren again. The mother denied this.