Fit Parent Presumption in Texas Custody Modification Proceedings

iStock-170042608-300x200There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents.  Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children.  Courts generally cannot interfere with these fundamental rights of a fit parent.  The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence.  He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

The mother petitioned for modification making her primary managing conservator, alleging the father had relinquished the children’s care, control, and possession for at least six months.  The aunt and uncle intervened.  The mother challenged their standing, but the trial court denied her motion.  The trial court also denied her requests to apply the fit parent presumption.

The jury determined the aunt and uncle should be joint managing conservators and both parents possessory conservators. Before the trial court entered the final order, however, the Texas Supreme Court held parents retain the parental presumption when nonparents seek custody of a child in modification of an order naming a fit parent managing conservator.  In re C.J.C. 

Fit Parent Presumption in Modification Proceedings

The mother appealed, arguing the trial court violated her fundamental rights by refusing to apply the fit parent presumption.  She also argued the evidence was legally insufficient to support removing her as managing conservator and that the uncle and aunt had no standing because they did not overcome the presumption.

Prior to the decision in In re C.J.C., the fit parent presumption applied to original suits affecting the parent child relationship under Tex. Fam. Code 153.131 and to possession and access suits by grandparents under section 153.433, but not to modification proceedings.  Now nonparents seeking custody in a modification proceeding after In re C.J.C. must overcome the presumption if a parent has been named managing conservator.

The appeals court concluded the decision in In re C.J.C. requires the court to apply the fit parent presumption in past proceedings that were not yet final when the decision was issued. That decision was issued before the case was final, so the mother was entitled to the presumption.

The appeals court concluded the mother waived her argument the presumption should have been included in the jury instructions because she failed to preserve the issue by objecting, but she did not waive her argument regarding insufficiency of the evidence.

The appeals court considered previous case law.  The Fourteenth Court of Appeals held that a nonparent typically must show that the child’s physical health or well-being would be significantly impaired if the nonparent was not awarded custody. Interest of N.H.  Similarly, the Thirteenth Court of Appeals held grandparents were required to show specific behavior that would probably result in the child’s health or emotional well-being being significantly impaired.  Interest of D.D.L.

Application of the Presumption

The father said the uncle was just helping him while he did not have a vehicle or his own home.  He said the mother had a home and the children could receive medical treatment from the tribal clinic while with her.

The uncle said the children came back multiple times with lice, but the mother said it happened only once and she tried to treat them before returning them. The father said she brought the children back unbathed and in the same underwear they had on when they left.  The mother testified they bathed at night and she returned them in the clothes they came in to avoid complaints from the father’s family.

The father expressed concerns the mother did not give the children their medicine when they were sick.  The mother testified the aunt picked up a prescription the mother obtained for her daughter, even though the child would be with the mother.

The aunt, uncle, and father expressed concerns about the children’s absences from school.   The mother acknowledged she sometimes took the children to school late because it was so far from her home.  She testified she would enroll the children in a closer school if they lived with her.

She also thought she was intentionally excluded from the children’s education and activities.  She was not included as a point of contact when the aunt and uncle registered the children at school. The principal said the father gave the aunt and uncle power of attorney to make decisions for the children.

The mother also acknowledged the children missed school for tribal visits, but said she followed the proper procedure and they finished their homework and went to a tutorial program.  She thought those absences were justified because they were not able to participate with the Tribe when the father’s family kept them from visiting her.

The father admitted the family would prevent the mother from seeing the children if she did not arrive at the ordered time.

The father and the aunt’s mother both testified the children did not want to go with the mother.  A school aide testified one child cried on the days she was to visit her mother, but also said the child admitted being nervous because it had been a while since she had seen her mother.

The mother said she was concerned the children were confused about who their parents were.  According to the father, aunt, and uncle, the children called the aunt and uncle “Mom” and “Dad.”

Pursuant to In re C.J.C., the order naming the mother joint managing conservator was “res adjudicata of the question of the child’s best interest and of the custody.” The appeals court considered whether there was evidence of any change since that order that would make the mother a danger to the health and development of the children.  The appeals court identified the most significant change as the father turning the children over to the aunt and uncle without notifying the mother.

The appeals court concluded the fit parent presumption had not been overcome.  There was no evidence of abuse, abandonment, severe neglect, substance abuse, or immoral behavior.

The appeals court rejected the mother’s standing requirement because the aunt and uncle had standing under Tex. Fam. Code 102.003(a)(9) and the mother had not submitted evidence challenging standing under this provision.  The aunt and uncle had standing to intervene.

The appeals court determined the mother was entitled to the fit parent presumption and the evidence was insufficient to rebut that presumption.  The appeals court reversed the trial court’s judgment and remanded the case for a new trial.

Contact McClure Law Group

If you are facing a custody dispute involving a nonparent, the skilled Texas child custody attorneys at McClure Law Group have knowledge and experience to help you.  Set up your consultation by calling our offices at 214.692.8200.


Contact Information