Justices of the Fort Worth Court of Appeals disagree on application of parental preference principle (the parental presumption, as defined in the Texas Family Code) where two grandparents together with both parents were appointed joint managing conservators of the child. Right to determine child's primary residence still critical.
THE DISSENTING & CONCURRING OPINION
BY JUSTICE TERRIE LIVINGSTON IN APPEAL NO 02-08-0015-CV, ISSUED 9/17/09)(links to other blog posts added)
The majority holds that the trial court could not appoint Joseph and Sharon (the Grandparents) together with Shelley and Roger (the Parents) as Ryder's joint managing conservators without applying the statutory parental presumption and determining that the Parents voluntarily relinquished care, custody, or control of Ryder or that the Parents' appointment as managing conservators would significantly impair Ryder's physical health or emotional development. See Majority op. at 9-14.
The majority departs from Texas Supreme Court precedent and our own precedent in its holding.
The Collective Appointment of the Grandparents and the Parents as Ryder's Joint Managing Conservators
Shelley's argument in her second issue that the trial court abused its discretion when it appointed the Grandparents as Ryder's joint managing conservators along with the Parents in that same role presupposes that the Grandparents were required to overcome the statutory parental presumption to gain the appointment. That supposition (and the majority's holding that follows the supposition) is erroneous.
Sections 153.131 and 153.373 of the family code establish that to overcome the presumption that a parent must be appointed as a managing conservator of a child, a court must find that (1) appointment of the parent would significantly impair the child's physical health or emotional development, (2) the parent has exhibited a history of family violence, or (3) the parent voluntarily relinquished care, control, and possession of the child to a nonparent for a year or more. Tex. Fam. Code Ann. §§ 153.131, .373 (Vernon 2008); see In re N.J.G., 980 S.W.2d 764, 766 n.1 (Tex. App.-San Antonio 1998, no pet.) (citing sections 153.131 and 153.373 in a discussion of the parental presumption).
But these findings are not required when both parents are named managing conservators.
Section 153.372 authorizes a trial court to appoint parents and nonparents together as joint managing conservators. Tex. Fam. Code Ann. § 153.372(a) (Vernon 2008). And Texas Supreme Court precedent holds that the mere appointment of grandparents as joint managing conservators alongside parents in that same role does not require a trial court to apply the parental presumption to exclude the grandparents; rather, the trial court may make such an appointment if it deems the appointment to be in the best interest of the child. Brook v. Brook, 881 S.W.2d 297, 299-300 (Tex. 1994).
In Brook, the court reviewed the collective appointment of the mother and the mother's parents as joint managing conservators to the exclusion of the father and unanimously reasoned that the statutory parental presumption “contemplates a situation in which neither of the parents are awarded" managing conservatorship. Id. at 298-99. The court explained that the parental presumption applies “only to those situations in which a nonparent seeks custody in lieu of a natural parent." Id. at 299 (emphasis added). Finally, the court noted that “[t]he purpose of the statute, to codify the preference for giving custody to a parent, has been met in the present case. The fact that a nonparent shares custody does not detract from the fact that one of the child's parents does have custody." Id. at 300. We have expressly held the same. Connors v. Connors, 796 S.W.2d 233, 239 (Tex. App.-Fort Worth 1990, writ denied) (holding that the presumption “does not preclude the appointment of a parent to serve jointly with a non-parent" and that it applies only if “appointment is to be denied to both parents").
While Brook cited a previous version of the family code, the language analyzed in the decision is almost exactly the same as the language that now appears in subsection (a) of section 153.131.1 Brook, 881 S.W.2d at 298B99. The only addition to the presumption statute that amounts to anything beyond rearranging words is subsection (b) of section 153.131, which states that it is “a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child."
The majority solely relies on subsection (b) as having precedent-overruling importance. See Majority op. at 10-13. But while it is possible (although not supported by any specific authority or legislative history in the majority's opinion beyond the statutory amendment itself) that subsection (b) could have modified Brook to the extent that the presumption applies unless both parents (rather than a single parent, like in Brook) are named joint managing conservators, that possible modification would have no effect on Brook's relation to this case because here the trial court did name both of the Parents as joint managing conservators, and thus completely complied with subsection (b). Thus, for section 153.131(b) to achieve the precedent-altering result that the majority holds it does under the facts of this case, it would need to go beyond stating that “[i]t is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child" to say something similar to “it is a rebuttable presumption that the appointment of parents of a child as joint managing conservators to the exclusion of all other parties seeking custody is in the best interest of the child." It does not do so.2
It is “fundamental to the very structure of our appellate system that [the Texas Supreme Court's] decisions be binding on the lower courts." Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008), cert. denied, 129 S. Ct. 2767 (2009); see Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (explaining that it “is not the function of a court of appeals to abrogate or modify established precedent").
Under the established precedent of the supreme court in Brook and of our own court in Connors, the Grandparents did not have to overcome the parental presumption for their appointment as joint managing conservators, and I would hold that their appointment as such is in Ryder's best interest under the factors listed in Holley v. Adams. 544 S.W.2d 367, 372 (Tex. 1976). Thus, I would affirm the trial court's conservatorship appointment, and I dissent to the portion of the majority's opinion reversing the appointment.
Primary Possession
Although Brook's application supports affirming the Grandparents' appointment as managing conservators along with the Parents, it does not extend to their award of Ryder's primary possession, as challenged by Shelley. Section 153.134(b)(1) of the family code states that in rendering an order appointing joint managing conservators, a court shall designate which conservator has the exclusive right to determine the primary residence of the child. Tex. Fam. Code Ann. § 153.134(b)(1) (Vernon 2008).
In Sotelo v. Gonzales, the El Paso Court of Appeals decided that in an original custody determination, the parental presumption “applies when a non-parent and parent are appointed joint managing conservators of a child but the non-parent is given primary custody." 170 S.W.3d 783, 788 (Tex. App.-El Paso 2005, no pet.) (citing In re De La Pena, 999 S.W.2d 521, 534-35 (Tex. App.-El Paso 1999, no pet.)). The court reasoned that to “hold otherwise would permit the court to apply the presumption in appointing the parent a joint managing conservator but nevertheless choose the primary residence of the child on the basis of a heads-up best interest test, with the court determining which of the parties is the 'better' choice." Id. This would, according to the El Paso Court, result in the “appointment of a parent as a managing conservator in name only, a paper title which eviscerates the purpose of the statute." De La Pena, 999 S.W.2d at 535.
In contrast, the San Antonio Court of Appeals held in Gardner v. Gardner that the parental presumption does not apply to the issue of primary possession between parent and nonparent joint managing conservators. 229 S.W.3d 747, 752 (Tex. App.-San Antonio 2007, no pet.).
In Gardner, the parties agreed to joint managing conservatorship of the children at issue, and the only remaining custody issue was which joint managing conservator was going to be awarded the right to determine the primary residence. Id. The court reasoned that because the “plain words of [section 153.131] do not address or contemplate application of the [parental] presumption to the issue of primary possession, [it] would have to rewrite the statute in order to reach the result in De La Pena." Id.
I agree with and would adopt the El Paso Court's position, applying the same reasoning as expressed in Sotelo and De La Pena. In De La Pena, the child's aunt sought managing conservatorship to the exclusion of both parents in that same role. De La Pena, 999 S.W.2d at 524-25. Because she sought complete exclusion of the parents, the El Paso Court properly applied the statutory presumption (as interpreted by Brook) that “the best interest of a child is served if a natural parent is appointed as a managing conservator." Id. at 527. Then, in applying the presumption to the primary possession issue, the El Paso Court held and explained that
as between a parent and nonparent, unless the court finds that appointment of the parent would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development, the parent shall be appointed sole managing conservator or the parent and nonparent shall be appointed joint managing conservators. If the court chooses the latter, the parent shall be awarded primary possession unless such an order would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development.[3]
Id. at 534-35 (emphasis added).
Our precedent establishes that the basis of the “deeply embedded" statutory parental presumption is to protect the “natural affection usually flowing between parent and child." In re M.N.G., 113 S.W.3d 27, 35 (Tex. App.-Fort Worth 2003, no pet.). Also, a parent's rights to “the companionship, care, custody, and management" of his or her children are constitutional interests Afar more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982). Implicit in these rights is the right to decide where one's child is to reside.
The majority says that applying the parental presumption to which joint managing conservator has the right to determine a child's primary residence would require us to “legislate from the bench."4 Majority op. at 14.
But the family code supports the application of the presumption even when nonparents are designated as joint managing conservators without applying the presumption under circumstances like those in Brook. As the El Paso Court explained, “Section 153.372(b) [of the family code] provides that the procedural and substantive standards regarding a court-ordered joint managing conservatorship provided by Subchapter C of the Family Code apply to a nonparent joint managing conservator. The very first section of Subchapter C contains the parental presumption." De La Pena, 999 S.W.2d at 534; see Tex. Fam. Code Ann. § 153.372(b) (Vernon 2008).
Other sections of the family code also support presuming that parents should maintain the right to designate a child's primary residence, which, as our supreme court has explained, is a crucial component of managing conservatorship. See Phillips v. Beaber, 995 S.W.2d 655, 660-61 (Tex. 1999) (equating the right of primary possession with “custody" and adding that primary possession and establishing a child's residence are “core rights of managing conservatorship"); see also Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000) (explaining that “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests"). For instance, the very first section of the conservatorship chapter of the family code relates that the state's public policy is to “assure that children will have frequent and continuing contact with parents." Tex. Fam. Code Ann. § 153.001(a)(1) (Vernon 2008). Another section of the code states that “[i] t is the policy of this state to . . . optimize the development of a close and continuing relationship between each parent and child." Id. § 153.251(b) (Vernon 2008).
I would hold that erasing the parental presumption in an original suit on custody when a court appoints multiple parties as managing conservators but gives primary possession to a nonparent would weaken these constitutional and statutory interests and would create an unintended result by placing the parent and nonparent on equal ground for the trial court's real custody determination. Thus, because I agree with the majority that the evidence in this case is insufficient to support the trial court's finding that the Grandparents rebutted the parental presumption, I would reverse the provisions of the trial court's order pertaining to the Grandparents' right to determine Ryder's primary residence and remand this case for further proceedings related to those provisions. I would also sustain Roger's sole issue and reverse the portion of the order limiting Roger's access to and possession of Ryder because as all parties have agreed, there is no evidence in the record supporting that limitation.
Conclusion
For these reasons, I respectfully dissent to the portion of the majority's opinion and judgment reversing the trial court's appointment of the Grandparents and Parents together as Ryder's joint managing conservators, but I concur with the majority's remand of the case for further proceedings.
TERRIE LIVINGSTON
JUSTICE
DELIVERED: September 17, 2009
FOOTNOTES:
1 Subsection (a) of section 153.131 currently provides,
[U] nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Tex. Fam. Code Ann. § 153.131(a). At the time of the Brook decision, the former section of the family code relating to the presumption stated,
A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:
the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.
Act of May 28, 1989, 71st Leg., R.S., ch. 370, § 1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; see Brook, 881 S.W.2d at 298. In essence, the legislature amended the family code to switch the order of the words existing in both provisions; it moved the words “the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development" from behind to in front of the words A[a] parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child."
2 The majority states, “There is no language in section 153.131 that indicates that the presumption is inapplicable to the appointment of non-parents as joint managing conservators when the trial court also appoints one or both parents." Majority op. at 12. But there was likewise no such language in the version of the statute analyzed in Brook. Brook, 881 S.W.2d at 298-99. The majority also argues that the Brook and Connors opinions regarded “a former statute that did not contain a parental presumption requiring that both parents be appointed joint managing conservators unless rebutted." Majority op. at 12-13. But again, that change to the former statute is irrelevant to this case because the trial court did appoint both Parents as joint managing conservators.
3 This language signals the El Paso Court's opinion that where a court does not find significant impairment under the parental presumption, appointment of parents alongside nonparents as joint managing conservators is still proper because in such a situation, the parents have not been excluded from managing conservatorship. Id.; see Brook, 881 S.W.2d at 299-300.
4 The majority uses the “legislate from the bench" pejorative phrase in an attempt to show why it would not apply the parental presumption to the right to determine Ryder's primary residence, but it does not explain why that same phrase would not apply to its own expansive interpretation of section 153.131 when that section applies to the appointment of both parents as a child's managing conservators.
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