Texas Court Should Have Applied Parental Presumption Even When Parent Lived Outside U.S.

iStock-1183307633Texas family law has a strong presumption that it is in the child’s best interest to give custody to a parent. Generally, the court must appoint sole managing conservatorship to the parent instead of a non-parent unless it finds doing so would not be in the child’s best interest due to significant impairment of the child’s emotional development or physical health. Tex. Fam. Code § 153.131(a). What if the parent lives in another country? A Texas appeals court recently considered this issue.

Father Served by Publication

The case began when the Department of Family and Protective Services (“Department”) filed suit seeking a protection order for the children based on the mother’s alleged actions. The older child was born in Guatemala, but the younger child was born in the United States.  The Department was unable to locate the father in Guatemala and served him by publication.

The court appointed an attorney ad litem to represent the father’s interest.  At the hearing, the attorney informed the court they were “not ready.” The attorney also informed the court they had spoken with the father and that he had not “actually been served.”

The court proceeded with the hearing.  The Department sought to have the children’s caregivers appointed as permanent joint managing conservators.  The caseworker testified she called the father. He told her he had filed a missing persons report for the children.  He told her the mother left Guatemala, so he “wasn’t able to do anything about it.”

The court appointed the caregivers as joint managing conservators. The court found the father was in fact the children’s father, but did not name him as either managing or possessory conservator. The court allowed the caregivers discretion regarding parental visitation, but ordered that the father be allowed a phone call at a designated time each week.

The father requested a de novo hearing regarding the appointment of the caregivers as managing conservators and the return of the older child. The court limited the hearing to matters in existence at the time of the previous hearing.

The father appeared by telephone.  He testified the older child was born in Guatemala and they had all lived together until the mother took the child to the U.S. without his knowledge or consent.  He said he activated the Guatemalan equivalent of an amber alert and pressed criminal charges for abduction. He testified he wanted his children to live with him in Guatemala.

The caseworker testified she first contacted the father at the time of the original hearing.  She also testified she did not “know anything about [his] status” when asked if she was concerned about him being a danger to the children.

The guardian ad litem recommended the children stay with their caregivers, but had no concerns about shared custody.  He would want the mother to verify the father’s testimony and ask why she left the country while pregnant.

The Department’s attorney said they would be “open” to the father being named a possessory conservator and working toward managing conservator.

The trial court adopted the associate judge’s findings.

Father Appeals Trial Court’s Ruling

The father appealed, seeking the return of the oldest child to Guatemala.  He argued the trial court abused its discretion.  He argued in the alternative that the court did not have jurisdiction over the child because he was in the U.S. illegally, referencing the Uniform Child custody Jurisdiction and Enforcement Act.

The appeals court noted, however, that the Texas Family Code allows suits to protect the children’s health and safety to be brought “in the county in which the child is found.”

The father also argued that the child was brought to and kept in the U.S. in violation of the Hague Convention.  The Texas Family Code states that in some circumstances involving the Hague Convention, “the prosecutor or other appropriate public official may” take action to locate or obtain the child, or enforce child custody. Tex. Fam. Code Section 152.315(a). Because this law gave the public official discretion, the appeals court did not find an abuse of discretion based on the court not requiring the department return the child to Guatemala.

The father also argued the evidence was legally and factually insufficient to support the findings underlying the trial court’s decisions relating to conservatorship, possession, and access.

The Department had the burden of rebutting the parental presumption by showing appointing the father as a managing conservator would significantly impair the physical health or emotional development of the children.

According to the evidence, the children had lived with their caregivers and half-sibling for more than a year and were doing well there.  The guardian ad litem testified he was concerned about the father’s statement the mother “escaped” and why the mother left Guatemala without telling him. Although the father testified he had cared for the older child while the child was in Guatemala and could take care of the children, the trial court could have either disbelieved him or given that information limited weight.  The appeals court therefore did not find the evidence was legally insufficient for the court to make the conservatorship decision it did.

The trial court, however, limited the de novo hearing to “evidence of matters that were in existence” at the time of the previous hearing.  Courts should consider the current circumstances in order to protect the children’s best interest.

Additionally, the guardian ad litem expressed no concerns with shared custody and the Department was open to the father being a possessory conservator. The caseworker did not express any concerns, indicating a lack of knowledge.  She was also unable to describe what would be needed for the father to be considered as a placement for the children.

Appellate Court Finds that Parental Presumption Should Have Been Applied

The appeals court found the evidence was factually insufficient to support a finding the children’s health or development would be significantly impaired. The trial court therefore abused its discretion in not applying the parental presumption and naming the father managing conservator. The court reversed the portion of the trial court’s order involving the father’s children and remanded the case.  The appeals court instructed the trial court to consider the current circumstances and conduct a home study on the father.

Avoid the Appeal – Start with Quality Legal Representation

This case shows how complex custody cases can be when one party lives outside the United States.  If you are dealing with a complex custody issue, a knowledgeable Texas custody attorney can help you fight for your children.  Call McClure Law Group at 214.692.8200 to set up a consultation.

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