Texas Divorce Attorney Blog
There is a strong presumption in Texas family law that it is in the child’s best interest for a parent to be awarded custody over a non-parent. In a recent case, a father appealed a judgment naming him joint managing conservator with the child’s maternal grandmother. A central issue in the case was the father’s argument that he should have been appointed the child’s sole managing conservator based upon the parental presumption.
The child had stayed with the mother when the parents broke up. The Department subsequently petitioned for termination of the mother’s parental rights.
The court removed the child from the mother and placed her in the care of the father’s ex-wife. The mother’s mother then sought managing conservatorship.
At trial, the father, the child’s attorney ad litem, and even the Department asked the court to name the father and his ex-wife, the child’s foster mother, as joint managing conservators. The mother and maternal grandmother asked the court to appoint the maternal grandmother as managing conservator. The court appointed the grandmother as sole managing conservator and named the mother and father possessory conservators.
Father Appeals for the First Time
The appeals court found the trial court erred in naming the grandmother the managing conservator because the preponderance of the evidence had not rebutted the statutory presumption that the father be designated managing conservator. The appeals court remanded the case.
After a hearing without any evidence presented, the trial court named the father and grandmother joint managing conservators. The court gave the grandmother the exclusive right to designate the primary residence of the child with the father having a standard possession order. The father was ordered to pay child support to the grandmother.
Father Appeals Again After Remand
The father appealed again.
The appeals court noted that it had stated in the previous opinion the father had to be named sole managing conservator of the child unless there was sufficient evidence to rebut the parental presumption. The appeals court found the trial court again abused its discretion in failing to appoint the father as the child’s sole managing conservator.
The appeals court again reversed the trial court’s judgment and remanded the case. This time, however, the appeals court specifically stated that the new judgment was to appoint the father as sole managing conservator with the right to get child support from the mother.
An important issue in this second appeal was that the court heard no evidence on remand. The appeals court found the evidence did not rebut the parental presumption at the time of the first appeal. Because no further evidence was heard, then the evidence still would not b
e sufficient to rebut the presumption on remand. The parental presumption cannot be avoided by naming the parent and the non-parent joint managing conservators. The law requires that a parent be named sole managing conservator or both parents be named joint managing conservators unless the court finds doing so would not be in the child’s best interest because it “would significantly impair the child’s physical health or emotional development.” Thus, if a parent and non-parent are each seeking custody (as the father and maternal grandmother were here), the parent must be named sole managing conservator unless the preponderance of the evidence rebuts the parental presumption.
Knowledge of the Law is Key – Hire Experienced Attorneys
If you are seeking custody, it is important to have an experienced Texas family law attorney knowledgeable about the parental presumption on your side. Schedule a consultation with McClure Law Group by contacting us at 214.692.8200.