Texas Divorce Attorney Blog
In a recent Texas child custody case, the children’s maternal uncle asked the trial court to name him to be sole managing conservator of the kids. The kids’ father, who was joint managing conservator of the kids when their mother died, moved to dismiss the lawsuit on the basis that he couldn’t establish standing to maintain the claim. The court determined that the uncle had failed to present enough evidence to show that the kids’ present situation would significantly harm their health or emotional development, as required by Texas Family Code section 102.004(a)(1).
The mother and father were appointed joint managing conservators of their two kids in 2012, with the mother having the right to designate a primary residence. The mother died of cancer in 2015 when one child was nine and the other was four. The father took over daily care for his kids. Prior to the mother dying, the kids had had significant interaction with the mother’s family, particularly their uncle on that side. After the death, the father refused to bring the kids to visit with the uncle’s cousin and didn’t bring the kids to their mother’s memorial service.
The uncle brought a petition, asking to be sole managing conservator of the kids, and supported it with an affidavit in which the mother had asked that he and his wife care for the kids if she died and in which he stated he and his wife had been actively involved in the kids’ lives. He also claimed that the father hadn’t supported the kids financially, hadn’t been involved with the kids before their mother died, and didn’t provide appropriate emotional support or arrangements.
The father moved to dismiss the petition, claiming the uncle lacked standing and stating the uncle couldn’t show that the kids’ present circumstances would impair their development or health. Other family members supported the uncle’s version of what had happened and also expressed concern that the father wouldn’t adequately provide for the kids. The father admitted he had five criminal convictions. However, he said that the mother had wanted the kids to come live with him.
At the end of the hearing, the court stated that it was a close call and that the issue wasn’t the best interests of the kids. It found that the uncle hadn’t met the standard set in section 102.004(a)(1).
The uncle appealed. He argued that he’d shown enough evidence that (1) the order was necessary to protect the kids’ health or development, (2) the trial court had made a mistake in requiring him to show immediate harm, (3) it had made a mistake in basically requiring him to overcome the parental presumption, and (4) it had made a mistake in forcing him to show he’d be successful on the merits of the case.
The appellate court explained that from the record, it seemed the lower court didn’t appropriately apply the standard of proof to evaluate whether the uncle had standing to ask for a modification of the kids’ conservatorship order under section 102.004(a)(1). It reversed.
The Texas Family Code allows a relative who is within “the third degree of consanguinity” to file suit asking for a managing conservatorship if an order is necessary because a child’s present circumstances would significantly impair her health or emotional development. The uncle was within the third degree of consanguinity. The court rejected the uncle’s argument that having to prove by a preponderance of the evidence that the kids’ present circumstances would harm them required him to prove the merits. However, it agreed with him that the trial court had made a mistake in applying the standard of proof to the issue of standing.
The uncle had testified about the failure to take the kids to counseling and about the father’s past behavior. There was a lot of evidence that the father had repeatedly failed to meet his fatherly duties, and some of that care had been provided by the uncle and his wife. The court reversed the order and asked the lower court to reconsider the issue of the uncle’s standing to bring the petition.
If you are concerned about child custody and parental rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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Divorce and Taxes – What to do if your ex-spouse botched your joint tax return, May 31, 2016