Saturday, August 8, 2009

The Parental Presumption Trump Card


Parents are entitled to decide and control who their kids will see and visit with.That includes aunts and uncles. Out-of-court conciliation efforts may be more appropriate under such circumstances because a judge is unlikely to grant any relief when the parents oppose contact sought by other family members, and may have her ruling reversed if she does enter an order to such effect.


When it comes to litigation, parents' rights generally trump those of other family members, not to mention neighbors and strangers; grandparents are given some legal rights, but also subject to significant conditions and restrictions, as explained in the following excerpt from a recent appellate opinion by Justice Angelini:

In this case, the trial court noted that it had no statutory authority to appoint the appellants as possessory conservators since it was appointing the mother as managing conservator and the father as possessory conservator. In addition, the trial court noted that it had done its best to get the parties to cooperate with each other in the best interest of J.O. Furthermore, the trial court observed that the communication between the parties had completely broken down, even with regard to J.O.'s medical needs.

"[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000); see also In re Pensom, 126 S.W.3d 251, 254 (Tex. App.--San Antonio 2003, orig. proceeding).

The Texas Legislature has recognized this fundamental right by creating a presumption in favor of the parents being appointed as both managing conservator and possessory conservator. Tex. Fam. Code Ann. §§ 153.131, 153.191 (Vernon 2002). Encompassed within this well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. In re Pensom, 126 S.W.3d at 254.

Although the Legislature has provided a means by which a grandparent is permitted to request access to a child, no similar provision permits the aunt of a child to request such access. See Tex. Fam. Code Ann. § 153.432 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 255 (noting Legislature's intent to limit a court's jurisdiction over non-parental intrusion by allowing only grandparents to petition for access).

Even in a case in which a grandparent requests access, access is only available where "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 256 (noting trial court must accord significant weight to a fit parent's decision about the third parties with whom his or her child should associate).

Although appellants assert that the Family Code contains no provision limiting the right of an aunt or uncle to seek access, appellants fail to cite any authority that would permit a trial court to grant such access given the fundamental right J.O.'s mother had to determine with whom J.O. should associate. See In re Pensom, 126 S.W.3d at 254.

Based on the foregoing, the trial court did not err in denying appellants access. Appellants' fifth issue is overruled. ... The trial court's judgment is affirmed.

SOURCE: Appellate opinion in 04-07-00752-CV (San Antonio)

The parental presumption as stated in the Texas Family Code provides:

. . . 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, a parent shall be appointed sole managing conservator or both parents
shall be appointed as joint managing conservators of the child. Tex. Fam. Code §153.131(a).


PARENTAL PREFERENCE: A fundamental policy grounded in constitutional and statutory law


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)


Friday, August 7, 2009

What is the Role of an Amicus Attorney in a Texas Child Custody Case?

THE ROLE OF AN AMICUS ATTORNEY IN A SAPCR

In a suit affecting the parent-child relationship [SAPCR], an amicus attorney may be appointed to assist the trial court in determining the best interests of the child. For the purposes of such a suit, the role of an “amicus attorney" is defined by statute as follows:

“Amicus attorney" means an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.

Tex. Fam. Code Ann. § 107.001(1); see also O'Connor v. O'Connor, ___ S.W.3d ___ , No. 01-06-00445-CV, 2007 WL 1440990, at *4 (Tex. App.- Houston [1st Dist.] May 17, 2007, no pet. h.) (“Because the amicus attorney is 'to provide legal services to assist the court,' the trial court is, in effect, the amicus attorney's client for a limited purpose. But the trial court is not a party . . . .").

AMICUS ATTORNEYS IN TX COURTS: THEIR STATUTORY JOB DESCRIPTION

The Texas Family Code explains the role and duties of an amicus attorney in some detail:

An . . . amicus attorney appointed to assist the court:

(1) shall:

(A) subject to Rules 4.02, 4.03, and 4.04, Texas Disciplinary Rules of Professional Conduct, and within a reasonable time after the appointment, interview:

(i) the child in a developmentally appropriate manner, if the child is four years of age or older;

(ii) each person who has significant knowledge of the child's history and condition, including any foster parent of the child; and

(iii) the parties to the suit;

(B) seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;

(C) consider the impact on the child in formulating the attorney's presentation of the child's expressed objectives of representation to the court;

(D) investigate the facts of the case to the extent the attorney considers appropriate;

(E) obtain and review copies of relevant records relating to the child as provided by Section 107.006;

(F) participate in the conduct of the litigation to the same extent as an attorney for a party;

(G) take any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings;

(H) encourage settlement and the use of alternative forms of dispute resolution; and

(I) review and sign, or decline to sign, a proposed or agreed order affecting the child;

(2) must be trained in child advocacy or have experience determined by the court to be equivalent to that training; and

(3) is entitled to:

(A) request clarification from the court if the role of the attorney is ambiguous;

(B) request a hearing or trial on the merits;

(C) consent or refuse to consent to an interview of the child by another attorney;

(D) receive a copy of each pleading or other paper filed with the court;

(E) receive notice of each hearing in the suit;

(F) participate in any case staffing concerning the child conducted by an authorized agency; and

(G) attend all legal proceedings in the suit.

Tex. Fam. Code Ann. § 107.003.

In addition to these duties listed above, the following responsibilities are imposed upon an amicus attorney:

(a) Subject to any specific limitation in the order of appointment, an amicus attorney shall advocate the best interests of the child after reviewing the facts and circumstances of the case. Notwithstanding Subsection (b), in determining the best interests of the child, an amicus attorney is not bound by the child's expressed objectives of representation.

(b) An amicus attorney shall, in a developmentally appropriate manner:

(1) with the consent of the child, ensure that the child's expressed objectives of representation are made known to the court;

(2) explain the role of the amicus attorney to the child;

(3) inform the child that the amicus attorney may use information that the child provides in providing assistance to the court; and

(4) become familiar with the American Bar Association's standards of practice for attorneys who represent children in custody cases.

(c) An amicus attorney may not disclose confidential communications between the amicus attorney and the child unless the amicus attorney determines that disclosure is necessary to assist the court regarding the best interests of the child.

Id. § 107.005.

THE FUNCTION OF THE AMICUS ATTORNEY IN THE FAMILY COURT SYSTEM IS TO ASSIST THE COURT

O'Connor, 2007 WL 1440990, at *4 (“The amicus attorney is appointed specifically to assist the court. and the plain language of the statutory definition of amicus attorney can mean only that the amicus attorney assists the court that appointed [the amicus attorney.]")

WHAT IS THE SCOPE OF A TRIAL JUDGE'S POWER TO APPOINT AN AMICUS ATTORNEY (AND OTHER PROFESSIONALS) IN A SAPCR

A trial court's powers to make discretionary appointments are addressed in section 107.021 of the Texas Family Code:

(a) In a suit in which the best interests of a child are at issue, . . . the court may appoint one of the following:

(1) an amicus attorney;

(2) an attorney ad litem; or

(3) a guardian ad litem.

. . .

(b) In determining whether to make an appointment under this section, the court:

(1) shall:

(A) give due consideration to the ability of the parties to pay reasonable fees to the appointee; and

(B) balance the child's interests against the cost to the parties that would result from an appointment by taking into consideration the cost of available alternatives for resolving issues without making an appointment;

(2) may make an appointment only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child, unless the appointment is otherwise required by this code; and

(3) may not require a person appointed under this section to serve without reasonable compensation for the services rendered by the person.[16]

Tex. Fam. Code Ann. § 107.021

SOURCE: In re Collins, No. 14-07-00624-CV, 242 S.W.3d 837 (Tex.App.- Houston [14th Dist.] Dec 17, 2007)


RELATED CONCEPTS: AD-LITEM ATTORNEY FOR THE CHILD, GUARDIAN AD LITEM, ATTORNEY AD LITEM, NEXT FRIEND


Exclusion of Witness Testimony on Childrens' Best Interest in SAPCR


Family Court Judges should not exclude best-interest evidence lightly in SAPCR proceeding, Court of Appeals Says.

The Texas Legislature has accorded “the best interest of the child” primary importance in the adjudication of child custody disputes and visitation and access issues. Trial judges who hear custody matters are expected to give effect to this policy in their decisionmaking, including their rulings involving procedure and presentation and admission of evidence. As seen in a recent appeal from a SAPCR case tried to a jury in Galveston county, courts of appeals take a dim view of a trial court judge denying a party the right to call witnesses and present evidence on the best interest of the child. In the Galveston case, in which the grandparents sought custody, the trial court had not allowed one of the parents to present any evidence other than his own testimony because he had not brought his trial exhibits and witness list to the pretrial conference. The Court of Appeals found this omission was not a good-enough reason to prevent the introduction of evidence that might a shed more light on what was really best for the children.

[A SAPCR in Texas refers to a suit affecting the parent-child relationship, otherwise know as a child custody/visitation suit.]


AN EXCERPT FROM THE OPINION FOLLOWS:

[T]he sanctions imposed in this case are difficult to reconcile with the legislative mandate that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code Ann. § 153.002 (Vernon 2002).

Texas courts have recognized that regard for the best interest of the child properly may be a factor influencing a trial court’s ruling on procedural issues such as discovery sanctions. See In re P.M.B., 2 S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (reversing trial court’s exclusion of evidence as discovery sanction under former Rule of Civil Procedure 215(5) in conservatorship case); see also In re C.H., No. 07-04-0428-CV, 2006 WL 3813751, at *2 (Tex. App.—Amarillo Dec. 28, 2006, no pet.) (mem. op.) (affirming, in conservatorship case, trial court’s ruling allowing late-disclosed witness to testify based on best interest of child).

We agree with the Fourteenth Court of Appeals that “the best interest of a child can only be attained when a court’s decision is as well-informed as the circumstances allow.” P.M.B., 2 S.W.3d at 624–25; In re N.R.C., 94 S.W.3d 799, 810 (Tex. App.—Houston [14 Dist.] 2002, pet. denied) (noting, “[T]o silence witnesses whose testimony is probative of the child’s best interest is to do a disservice to the child.”). We also agree with the following reasoning,

A decision on custody, possession, or access can rarely be well-informed without consideration of the evidence and perspectives of both [parties]. Because the exclusion of any important evidence as a discovery sanction can only produce a less-informed decision, contrary to the best interest of the child, we believe that it should be resorted to only where lesser sanctions are either impracticable or have been attempted and proven unsuccessful. P.M.B., 2 S.W.3d at 625.

Here, the jury’s conservatorship decision could not have been well-informed, and thus in the best interest of the children, without the jury first considering Joseph’s evidence. We conclude that the trial court’s sanction imposed in this case was excessive. Accordingly, we hold that the trial court abused its discretion by prohibiting Joseph from presenting non-party witnesses and tangible evidence at trial.

We may reverse only if the trial court’s sanctions probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting the case to this court. See Tex. R. App. P. 44.1(a). Here, the harm caused by Joseph’s inability to present any evidence in defense of the SAPCR suit is patent.

We agree with other courts that precluding a party from calling any fact witnesses and offering any tangible evidence is tantamount to a death penalty sanction. See N.R.C., 94 S.W.3d at 810 (concluding that striking of all of mother’s fact witnesses was death penalty sanction); P.M.B., 2 S.W.3d at 624 (noting that exclusion of evidence is extreme penalty akin to striking of pleadings). By precluding Joseph from presenting any evidence at trial, other than his own testimony, the trial court eviscerated Joseph’s ability to present effectively the merits of his defense. See N.R.C., 94 S.W.3d at 810.

Moreover, though Joseph’s counsel explained to the jury why he was not allowed to call any witnesses or present evidence, the jury likely drew negative inferences from Joseph’s failure to either comply with the trial court’s pretrial order or present evidence. See id. It is reasonable to assume that, without fact or expert witnesses to corroborate his own testimony, Joseph suffered prejudice in the eyes of jury. See id.

For these reasons, we hold that, on the record presented, the sanction imposed in this case probably caused the rendition of an improper judgment, which requires reversal. See Tex. R. App. P. 44.1(a).

We sustain Joseph’s seventh issue.


Taylor v. Taylor (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)
(
family law, SAPCR, grandparent custody, exclusion of evidence, sanctions, consideration of best interest)
DECISION ON APPEAL: REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Panel opinion written by Justice Laura Carter Higley
Appellate Cause Number: No.
01-07-00571-CV
Case Style: Joseph Ray Taylor v. Kevin Taylor and Cheryl Taylor
Appeal from 306th District Court of Galveston County