Parents have fundamental rights to make certain decisions regarding their children. These rights can make it difficult for a non-parent to gain custody or visitation rights to children over the objection of a fit parent in a Texas custody case. A Texas appeals court recently held a trial court could not award an unrelated person visitation and access to children when the father was fit.
The father filed for divorce in 2018. The court signed temporary orders naming the mother and father joint managing conservators of the children.
A person who was unrelated to the children, identified as “B.B.,” intervened and requested a temporary restraining order. She alleged the children had been living with her during the case. She claimed the mother had mental health problems and had physically abused one of the children. The court issued a temporary restraining order and ordered the parents not to remove the children from B.B.’s possession until a hearing occurred.
The court issued another temporary order following the hearing. That order named the parents joint managing conservators with the father having the right to designate the children’s primary residence during the case. B.B. was named possessory conservator and given possession two weekends a month and some weeks in the summer. The temporary order also allowed her to have video calls with the children two nights a week.
The father sought mandamus relief and asked the appeals court to vacate the temporary order.
The father argued the recent Texas Supreme Court case of In re C.J.C. required the court to grant the requested relief. In that case, the Texas Supreme Court held there is a presumption embedded in the child’s best interest that a fit parent determines whether a nonparent should be allowed conservatorship or possession of a child.
The appeals court then considered the father’s fitness. Although B.B. did not specifically allege the father was unfit, she provided some facts for the court. She alleged the father had abused methamphetamines, but did not provide evidence. She also alleged there was a current CPS case against the father’s girlfriend involving her child testing positive for methamphetamine. The docket sheet she attached, however, did not reference the father. She also claimed one of the father’s children had tested positive for drugs. The appeals court noted the drug test result she attached indicated the child tested positive for marijuana, but there was nothing other than B.B.’s claims indicating the result was caused by the father. The appeals court also noted that, according to B.B., the child would have been living with her at the time of the test. She alleged the father would not see the children for “long periods,” but only identified one nine-day period and did not provide any evidence. She claimed the father had not paid any child support, but her evidence did not support that. She further claimed the parents had not been joint managing conservators for the whole case, but the court found nothing in the evidence she provided indicating anyone else had been named joint managing conservators.
The appeals court found no evidence and no findings in the record that the father was unfit as a parent. As a fit parent, the father had the right to determine if B.B. would have conservatorship or possession. The appeals court found the trial court had abused its discretion in naming her a possessory conservator and giving her possession and access to the children.
The appeals court conditionally granted the writ of mandamus and directed the trial court to vacate the temporary order.
When a custody case involves a non-parent, it is important to seek the advice and counsel of an experienced Texas child custody attorney with knowledge of recent case law. Call 214.692.8200 to schedule a consultation with McClure Law Group.