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)

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

Best Interest of the Child in Texas: The Holley v. Adams Factors

The best interest of the child is an important consideration for judicial decisionmaking in the area of child custody and visitation. It is also part of the criteria in termination of parental rights proceedings. While the best-interests test is well-known, it is also rather broad and subject to different interpretations. Just what does it mean, and how is it implemented in the courts of this state? The Texas Supreme Court added greater specificity in its much-cited opinion in Holley v. Adams by providing a list of considerations for the judge to apply and hear evidence on. These are known as the Holley v. Adams factors and can be thought of as guidelines. Judges hearing cases involving minor children retain a large amount of discretion and may consider evidence that does not necessarily fit well into any one of the categories.

The Best Interest of the Children Standard in Texas

Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include

(1) the desires of the child,

(2) the emotional and physical needs of the child now and in the future,

(3) the emotional and physical danger to the child now and in the future,

(4) the parental abilities of the individuals seeking custody,

(5) the programs available to assist these individuals to promote the best interest of the child,

(6) the plans for the child by these individuals or by the agency seeking custody,

(7) the stability of the home or proposed placement,

(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and

(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re M.N.G., 147 S.W.3d 521, 539 (Tex. App._Fort Worth 2004, pet. denied).

These factors are not exhaustive. Some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539.

In addition to the above, a parent's inability to provide adequate care for the child, lack of parenting skills, poor judgment, and repeated instances of immoral conduct may also be considered when looking at the child's best interest. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.- Fort Worth 2003, no pet.).