Texas child custody law includes a presumption that a parent will be appointed sole managing conservator or both parents will be joint managing conservators of their children unless a court finds that doing so would significantly impair the health or emotional development of the children. Although it can be difficult for a third party to get custody of a child, it does occur in some cases. Grandparents and stepparents, in particular, can play significant roles in children’s lives and may want custody. A father recently challenged an order appointing him, the mother, and the stepfather as joint managing conservators of the child.
The father argued that the stepfather had not rebutted the parental presumption. He argued that the stepfather had to rebut the parental presumption in Tex. Fam. Code Ann. § 153.131(a) to succeed in his petition to modify the prior order. The appeals court found, however, that the statute and the presumption contained therein only apply to original custody proceedings. The order at issue was not the original order, but it was instead a modification of the prior order. The presumption was therefore not applicable, and the stepfather did not have to rebut it at this stage.
The father also argued that the stepfather did not have standing to petition for a modification. The father argued that Tex. Fam. Code Ann. § 102.004 applied. Under this statute, a grandparent or another relative may file suit seeking custody if the child’s current circumstances would significantly impair his or her health or emotional development, or if the suit is filed or consented to by the parents or the managing conservator.
The appeals court noted that the stepfather is neither a grandparent nor “another relative within the 3rd degree of consanguinity” as required by § 102.004. This statute, therefore, was not applicable to the current case. Instead, the court found that Tex. Fam. Code Ann. § 156.002 applied. Pursuant to § 156.002, a person who has standing under Chapter 102 at the time of filing may petition for a modification of the custody order. A person with “actual care, control, and possession of the child for at least six months ending not more than 90 days” before the petition was filed has standing under Chapter 102.
The trial court found that the stepfather had continual possession for the two years before the suit. The stepfather also testified that the child lived with him for two and a half to three years before the hearing occurred. The appeals court found that the stepfather therefore had standing pursuant to Chapter 102 and therefore had standing to seek a modification under § 156.002.
The appeals court affirmed the trial court’s order.
This case shows the importance of challenging the appointment of a third party as a managing conservator at the time of the original proceeding. If the original custody order appointing a third party is not successfully challenged, the parental presumption will not be applicable during any modification proceedings.
If you are facing a difficult custody situation, the experienced Texas child custody attorneys at McClure Law Group can help you fight for your children. Call us at 214.692.8200 to schedule a consultation to discuss your case.