PREFERENCE FOR PARENTS TO RAISE THEIR CHILDREN MEANS THAT BEST-INTEREST FACTORS ALONE DO NOT JUSTIFY TRANSFERRING PARENTAL RIGHTS TO NON-PARENTS.
As a matter of fundamental principle, the law recognizes that parents have the right to raise their own children, and thus favors giving preference to parents over non-parents in case of a dispute. Non-parents must thus meet a higher standard than merely showing that they would do a better job caring for the kids, or that their appointment as managing conservators by the court would serve the best interest of the child. As a general proposition the law presumes that children are best off being raised by their own parents and that the parents are up to the task. A nonparent would have the burden to show otherwise.
Because of this presumption, the relevant question in a dispute between parents and nonparents is not Who can best care for these kids? Instead, the question is: Is there anything seriously wrong with the parents and the job they are doing raising these kids? Do the children suffer abuse, neglect, or some other harm or risk of harm for which the parents are responsible?
In addition, any person claiming an interest in the child's well-being and seeking right of access or custody of the child in court must have legal standing to do so, a topic covered elsewhere on this blog.
Statutory law and case law define the standard a nonparent has to meet (assuming the nonparent has standing) to overcome the parental preference (also referred to as parental presumption) with greater specificity.
Legal Standard for Nonparent Custody ("managing conservatorship” in Texas)
Family Code section 153.131(a) provides for the appointment of the parent as sole managing conservator or the parents as joint managing conservators, unless the court finds the appointment would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002).
For the court to award managing conservatorship to a non-parent under section 153.131, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Evidence must be presented to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. This link between the parent’s conduct and harm to the child may not be based on evidence that merely raises a surmise or speculation of possible harm. Id. When a non-parent and a parent are both seeking managing conservatorship, “close calls” go to the parent. Id.
An adult’s future conduct may be somewhat determined by recent past conduct. In and of itself, however, evidence of past misconduct may not be sufficient to show present unfitness. Id. Further, it is wholly inadequate simply to present evidence that a non-parent would be a better choice as custodian of the child. Id. (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)). The non-parent must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Id. Specific acts or omissions of a parent implicating a significant impairment to a child’s emotional development may be inferred from direct evidence. Id.
SOURCE: Appellate Opinion of the First Court of Appeals in No. 01-07-00571-CV
Taylor v. Taylor, 254 S.W.3d 527 (Tex.App.- Houston [1st Dist.] March 20, 2009)
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