parental presumption in Texas

2024Id. § 153.131(a).1 The parental presumption in section 153.131 “is based upon the natural affection usually flowing between parent and child.” Interest of S.T., 508 S.W.3d at 491 (quoting Interest of V.L.K., 24 S.W.3d 338, 341 (Tex. 2000)).

2024CODE § 156.101(a)(1)); see also In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000) (“Chapter 156 does not provide for a parental presumption in modification suits.”).

2026To rebut the parental presumption, the nonparent seeking conservatorship must identify “some act or omission committed by [the parent] which demonstrates that naming her as managing conservator will significantly impair [the child’s] physical health or emotional development.” Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990); see also In re F.E.N., 579 S.W.3d at 77 n.5 (noting that in Lewelling supreme court “did not address whether the parent’s conduct must be of a certain type or nature”); but see also In re R.T.K., 324 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)

2024“The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law,” Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990), and the fact that another party, such as Intervenors, “would be a better custodian of a child is not sufficient to rebut the parental presumption absent” additional required showings, id. (quoting 89–1 State Bar Section Report—Family Law 27 (J.

2019“Thus, under Chapter 153, the nonparent [must] rebut the parental presumption by showing that the appointment of the parent would significantly impair the child’s health or development.” V.L.K., 24 S.W.3d at 341–42 (citing Brook v. Brook, 881 S.W.2d 297, 298 (Tex. 1994)).

2019“Thus, under Chapter 153, the nonparent [must] rebut the parental presumption by showing that the appointment of the parent would significantly impair the child’s health or development.” V.L.K., 24 S.W.3d at 341–42 (citing Brook v. Brook, 881 S.W.2d 297, 298 (Tex. 1994)).

2020Neither V.L.K. nor the Supreme Court’s other decision rejecting a parental presumption in modification proceedings “involved a modification proceeding in which a fit parent had been named the child’s managing conservator in the order sought to be modified.” In re C.J.C., ___ S.W.3d ___, ___, No. 19-0694, 2020 WL 3477006 , at 4 *9 (Tex. June 26, 2020) (citing In re V.L.K., 24 S.W.3d at 339–43, and Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955)).

2019“The parental presumption is based upon the natural affection usually flowing between parent and child.” Id. (citing Taylor v. Meek, 276 S.W.2d 787, 790 (1955)).

2009The parental-immunity doctrine shields a parent from suits brought by an uneman-cipated minor child arising out of “alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.” Felderhoff v. Felderhoff 473 S.W.2d 928, 933 (Tex.1971).

2009The Felderhoff court observed that the objective of the parental-immunity doctrine is to “prevent the judicial system from being used to disrupt the wide sphere of reasonable discretion which is necessary in order for parents to properly exercise their responsibility to provide nurture, care, and discipline for their children.” Id. at 933 .

2019Entry of Judgment With Reduced Award In their first issue, Ruff and Loth contend that “[t]he trial court erred in ignoring the doctrine of parental immunity and allowing the jury to apportion fault to” them as “A.R.’s parents.” They argue that the trial court erred “in overruling [their] objections and allowing [the University] to argue that the jury should consider parental contributory negligence.” And they argue that parental immunity (i) bars the University’s “claim of contributory negligence against” them and (ii) makes Chapter 33 an impermissible “argument[,] and the trial court erred in

2009Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992) (concluding that parental immunity applied to claim for negligent supervision of child who drowned). "[W]here the parental immunity doctrine bars legal action by a child against his parents, that child's recovery from other defendants is not reduced by his parents' percentage of negligence." Plainview Motels v. Reynolds, 127 S.W.3d 21, 41 (Tex. App.–Tyler 2003, pet. denied) (applying parental immunity when a father held his child to prevent him from running about the premises which, the court concluded, was an act of supervision).

2019See, e.g., Rolle v. Hardy, 527 S.W.3d 405, 416 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“Section 153.131’s parental presumption applies only in original custody disputes—it does not apply to modification suits, such as the one [the children’s uncle] has filed here.”); Mauldin, 428 S.W.3d at 266–67 (holding that parental presumption did not apply in case that started as modification proceeding filed by child’s father and ultimately became dispute between child’s mother and child’s paternal grandparents, who intervened in case); In re S.A.H., 420 S.W.3d 911, 917 (Tex. App.—Houston [14th Di

2019See, e.g., Rolle v. Hardy, 527 S.W.3d 405, 416 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“Section 153.131’s parental presumption applies only in original custody disputes—it does not apply to modification suits, such as the one [the children’s uncle] has filed here.”); Mauldin, 30 428 S.W.3d at 266–67 (holding that parental presumption did not apply in case that started as modification proceeding filed by child’s father and ultimately became dispute between child’s mother and child’s paternal grandparents, who intervened in case); In re S.A.H., 420 S.W.3d 911, 917 (Tex. App.—Houston [14th

2021See id. § 153.131; see also In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000) (explaining that natural parent “has the benefit of the parental presumption . . . and the nonparent seeking conservatorship has a higher burden”); Whitworth, 222 S.W.3d at 623 (“There is a strong presumption that the best interest of a child is served if a natural parent is appointed as managing conservator.”).

2017CODE ANN. § 153.131(a) - (b) ; In re V.L.K. , 24 S.W.3d 338 , 341, 343 (Tex. 2000) (explaining natural parent "has the benefit of the parental presumption ... and the nonparent seeking conservatorship has a higher burden" (emphasis added)); Lewelling v. Lewelling , 796 S.W.2d 164 , 167 (Tex. 1990) ; see also In re R.L. , 2017 WL 1496955 , at *14 ; Whitworth v. Whitworth , 222 S.W.3d 616 , 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("There is a strong presumption that the best interest of a child is served if a natural parent is appointed as a managing conservator.").

2014See, e.g., In re C.A.M.M., 243 S.W.3d at 216; In re A.D.H., 979 S.W.2d 445, 447 (Tex.App.-Beaumont 1998, no pet.).

2011See, e.g., V.L.K., 24 S.W.3d at 342-43 ; C.A.M.M., 243 S.W.3d at 215-16 ; P.D.M., 117 S.W.3d at 457-58 ; In re A.D.H., 979 S.W.2d 445, 447 (Tex.App.-Beaumont 1998, no pet.).

2020Abigail’s father characterizes Abigail’s relationship with her stepmother as “very loving” and “healthy,” describing his wife as “a perfect role model for [Abigail] given the situation that we’re in.” In awarding Jason visitation and overnight possession over Abigail’s father’s objection, the trial court essentially substituted its determination of Abigail’s best interest for her father’s, stating, “The court has determined what is in [Abigail’s] best interest, and you are to make this as agreeable as you can force yourself to do.” Like the trial court’s decision in Troxel, the trial court’s d

2020Abigail’s father characterizes Abigail’s relationship with her stepmother as “very loving” and “healthy,” describing his wife as “a perfect role model for [Abigail] given the situation that we’re in.” In awarding Jason visitation and overnight possession over Abigail’s father’s objection, the trial court essentially substituted its determination of Abigail’s best interest for her father’s, stating, “The court has determined what is in [Abigail’s] best interest, and you are to make this as agreeable as you can force yourself to do.” Like the trial court’s decision in Troxel, the trial court’s d

2023See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); see also Lewelling, 796 S.W.2d at 167 (observing that the “strong presumption” in favor of parental custody imposes a “heavy burden on a nonparent” and that “[i]t is no longer adequate to offer evidence that the nonparent would be a better custodian of the 4 Section 153.131 is expressly made subject to Family Code section 153.004, which provides another exception to the parental presumption.

2017Based on this record, despite the parental presumption in Geri’s favor, we cannot determine that the trial court abused its discretion 'in deciding that it was not in the children’s best interests to be returned to Geri’s care, see J.A.J., 243 S.W.3d at 616 , or in deciding that Geri’s appointment as managing conservator of’ the children would impair their physical health or emotional development, see Tex, Fam.Code Ann. § 263.404 (West Supp. 2016).

2023This court has previously held that evidence of a child’s attachment to a non-parent can be sufficient to overcome the parental presumption if that evidence “establishes that [the child’s] emotional development will be impaired to some extent if she is removed from the [non-parents’] care.” In re Rodriguez, 940 S.W.2d 265 , 273–74 (Tex. App.—San Antonio 1997, writ denied).

2011In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.-Texarkana 2006, no pet.) ("In fact, even without evidence establishing any blameworthiness of the parent, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child.”); In re Rodriguez, 940 S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, writ denied) (concluding that nonparent had rebutted parental presumption solely by producing evidence that the effect on the child of being removed from the only home she had ever known would be "devastating”). .Chavez v. Chavez, 148 S.W.3d 449, 458-5

2019See H.S., 550 S.W.3d at 162 ; In re M.J.G., 248 S.W.3d 753, 758 (Tex. App.—Fort Worth 2008, no pet.); see also In re SSJ-J, 153 S.W.3d 132 , 137–38 (Tex. App.—San Antonio 2004, no pet.) (recognizing that standing under section 8 102.003 “does not mean the right to win; it is only a right to be heard” and that intervenor nevertheless “must still overcome the parental presumption” on the merits of managing-conservatorship claim against parent).

2008See Fleming v. Easton, 998 S.W.2d 252, 255 (Tex. App.-Dallas 1999, no pet.); Dohrn v. Delgado, 941 S.W.2d 244, 248 (Tex.App.-Corpus Christi 1996, no writ); Lewis v. McCoy, 747 S.W.2d 48, 50 (Tex.App.-El Paso 1988, no writ). [10] See In re SSJ-J, 153 S.W.3d 132, 134-38 (Tex.App.-San Antonio 2004, no pet.) (discussing history of section 102.003(a)(11) and concluding that upon the death of the child's mother, who was a joint managing conservator with the right to establish the child's primary residence, the child's maternal grandmother and step-grandfather had standing to bring an original suit s

2020See In re S.M.D., 329 S.W.3d at 16 ; see also In re M.W., 959 S.W.2d at 666 .

2015In re M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler 1997, writ denied).

2009In asserting that the ordinances limit LaGrone’s “discretion” in a manner relevant to the parental-immunity defense, Sepaugh relies primarily on language in Jilani 767 S.W.2d at 672-73 .

2009The supreme court next addressed the parental-immunity doctrine in Jilani v. Jilani, 767 S.W.2d 671 (Tex.1988).

2014In In re M.N.G., the Fort Worth Court of Appeals considered and rejected a constitutional challenge to section 156.101 similar to the one Mother raises here: that failure to apply the parental presumption in a modification proceeding denies a parent due process. 113 S.W.3d 27 , 32-36 (Tex.App.-Fort Worth 2003, no pet.). 8 This court has not taken a position regarding the constitutionality of section 156.101.

2010See V.L.K. , 24 S.W.3d at 343 ; see also In re M.N.G. , 113 S.W.3d 27, 35 (Tex. App.—Fort Worth 2003, no pet.) (rejecting argument that when modification proceedings pit parent against nonparent, the parental presumption applies).

2026To rebut the parental presumption, the nonparent seeking conservatorship must identify “some act or omission committed by [the parent] which demonstrates that naming her as managing conservator will significantly impair [the child’s] physical health or emotional development.” Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990); see also In re F.E.N., 579 S.W.3d at 77 n.5 (noting that in Lewelling supreme court “did not address whether the parent’s conduct must be of a certain type or nature”); but see also In re R.T.K., 324 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)

2020The plain language of section 151.131(a), however, “does not necessarily require proof of a parent’s blameworthy conduct as a prerequisite to appointment of a nonparent as managing conservator.” In re R.T.K., 324 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2010, pet denied); see In re G.R.W., 191 S.W.3d 896, 900 (Tex. App.—Texarkana 2006, no pet.) (observing that “even without evidence establishing any blameworthiness of the parent, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child”).

2020The plain language of section 151.131(a), however, “does not necessarily require proof of a parent’s blameworthy conduct as a prerequisite to appointment of a nonparent as managing conservator.” In re R.T.K., 324 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2010, pet denied); see In re G.R.W., 191 S.W.3d 896, 900 (Tex. App.—Texarkana 2006, no pet.) (observing that “even without evidence establishing any blameworthiness of the parent, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child”).

2011In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.-Texarkana 2006, no pet.) ("In fact, even without evidence establishing any blameworthiness of the parent, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child.”); In re Rodriguez, 940 S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, writ denied) (concluding that nonparent had rebutted parental presumption solely by producing evidence that the effect on the child of being removed from the only home she had ever known would be "devastating”). .Chavez v. Chavez, 148 S.W.3d 449, 458-5

2015I would other evidence establishing the statutorily required hold on this legal issue that negative effect on the child."); In re Rodriguez, 940 Lewelling is controlling; and, that S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, at the present time [and] under the writ denied) (concluding that nonparent had rebutted current state of Texas laws, the parental presumption solely by producing evidence Lewelling standard that non-parents that the effect on the child of being removed from the seeking custody here cannot benefit only home she had ever known would be from their bonding or attachment "d

2015I would other evidence establishing the statutorily required hold on this legal issue that negative effect on the child."); In re Rodriguez, 940 Lewelling is controlling; and, that S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, at the present time [and] under the writ denied) (concluding that nonparent had rebutted current state of Texas laws, the parental presumption solely by producing evidence Lewelling standard that non-parents that the effect on the child of being removed from the seeking custody here cannot benefit only home she had ever known would be from their bonding or attachment "d

2021Again, in light of the parental presumption, our focus is whether there was some specific, identifiable 4 parental behavior or conduct that would probably harm Ashley, see Critz, 297 S.W.3d at 474 , and the testimony concerning Ashley’s desires was “not evidence of bad acts by” Father.

2014Id. §§ 153.131(a) and (b), 153.373; see also Critz v. Critz, 297 S.W.3d 464, 470 (Tex.App.-Fort Worth 2009, no pet.) (discussing methods for rebutting the parental presumption contained within Chapter 153).

2009See Hall, 851 S.W.2d at 910 (rejecting the insurance argument because “[l]iability insurance cannot vitiate the parental immunity doctrine”); see also Petco, Inc., 144 S.W.3d at 565 .

2009See Hall, 851 S.W.2d at 910 (rejecting the insurance argument because “[l]iability insurance cannot vitiate the parental immunity doctrine”); see also Petco, Inc., 144 S.W.3d at 565 .

2009Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992) (concluding that parental immunity applied to claim for negligent supervision of child who drowned). "[W]here the parental immunity doctrine bars legal action by a child against his parents, that child's recovery from other defendants is not reduced by his parents' percentage of negligence." Plainview Motels v. Reynolds, 127 S.W.3d 21, 41 (Tex. App.–Tyler 2003, pet. denied) (applying parental immunity when a father held his child to prevent him from running about the premises which, the court concluded, was an act of supervision).

2009Shoemake v. Fogel, Ltd. , 826 S.W.2d 933, 935 (Tex. 1992) (concluding that parental immunity applied to claim for negligent supervision of child who drowned). "[W]here the parental immunity doctrine bars legal action by a child against his parents, that child's recovery from other defendants is not reduced by his parents' percentage of negligence." Plainview Motels v. Reynolds , 127 S.W.3d 21, 41 (Tex. App.-Tyler 2003, pet. denied) (applying parental immunity when a father held his child to prevent him from running about the premises which, the court concluded, was an act of supervision).

2015Under the The only addition to the presumption statute that established precedent of the supreme court in amounts to anything beyond rearranging words Brook and of our own court in Connors, the is subsection (b) of section 153.131, which states Grandparents did not have to overcome the that it is "a rebuttable presumption that the parental presumption for their appointment as appointment of the parents of a child as joint joint managing conservators, and I would hold managing conservators is in the best interest of that their appointment as such is in Ryder's best the child." interest under th

2009Under 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).

2015Because she sought complete exclusion of the parents, the El Paso Court properly In Sotelo v. Gonzales, the El Paso Court of applied the statutory presumption (as interpreted Appeals decided that in an original custody by Brook) that "the best interest of a child is determination, the parental presumption "applies served if a natural parent is appointed as a when a non-parent and parent are appointed joint managing conservator." Id. at 527 .

2011See id. [1] Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g). [2] In re G.R.W., 191 S.W.3d 896, 900 (Tex. App.-Texarkana 2006, no pet.) ("In fact, even without evidence establishing any blameworthiness of the parent, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child."); In re Rodriguez, 940 S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, writ denied) (concluding that nonparent had rebutted parental presumption solely by producing evidence that the effect on the chil

2000See In re A.D.H., 979 S.W.2d 445, 447 (Tex.App.—Beaumont 1998, no pet.); In re Ferguson, 927 S.W.2d at 768-69 ; Hogge v. Kimbrow, 631 S.W.2d 603, 604 (Tex.App.—Beaumont 1982, no writ); Allen v. Salinas, 483 S.W.2d 289, 292 (Tex.Civ.App.—El Paso 1972, no writ); Simmons v. Hitchcock, 283 S.W.2d 84, 87-88 (Tex.Civ.App.—El Paso 1955, no writ).

1998See also In the Interest of Ferguson, 927 S.W.2d 766, 768-69 (Tex.App.—Texarkana 1996, no writ)(holding the requirements of modification in Section 156.101 are not subordinated to the parental presumption of Section 153.131(a)).

2011See In re J.P.C. , 261 S.W.3d at 340 (citing Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985)).

2010See In re J.P.C., 261 S.W.3d at 340 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

2017Code Ann. § 153.131 (a) -(b) (Vernon 2014) (presumption appointment of parents as joint managing conservators in best interest of child); In re V.L.K. , 24 S.W.3d 338 , 341, 343 (Tex. 2000) (explaining natural parent "has the benefit of the parental presumption ... and the nonparent seeking conservatorship has a higher burden" (emphasis added)); Lewelling , 796 S.W.2d at 167 (strong presumption in favor of parental custody); Whitworth v. Whitworth , 222 S.W.3d 616 , 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("There is a strong presumption that the best interest of a child is served if

2017Code Ann. § 153.131 (a) -(b) (Vernon 2014) (presumption appointment of parents as joint managing conservators in best interest of child); In re V.L.K. , 24 S.W.3d 338 , 341, 343 (Tex. 2000) (explaining natural parent "has the benefit of the parental presumption ... and the nonparent seeking conservatorship has a higher burden" (emphasis added)); Lewelling , 796 S.W.2d at 167 (strong presumption in favor of parental custody); Whitworth v. Whitworth , 222 S.W.3d 616 , 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("There is a strong presumption that the best interest of a child is served if