In accordance with Troxel v. Granville, 530 U.S. 57 (2000), Texas Family Code section 153.131* includes a rebuttable presumption, in an original SAPCR, that appointment of a child’s parents as joint managing conservators of a child is in the child’s best interest. Section 153.373** states that the presumption is rebutted if a parent voluntarily relinquishes actual care, control and possession of a child for a period of at least one year. No such presumption, or means of rebutting that presumption, is included in Chapter 156 of the Texas Family Code, which governs modifications.
In In re S.A.H., No. 14-12-00618-CV (Tex. App. – Houston [14th Dist.] Jan. 28, 2014), the parents divorced and were appointed joint managing conservators. Later, the child’s great aunt filed a modification suit requesting that she be appointed sole managing conservator with the right to designate the child’s primary residence, based on having care and possession of the child for at least six months, which is the time period required for modification.
The mother argued that she was constitutionally entitled to the parental presumption in the modification suit because, for the first time, a nonparent was seeking conservatorship of her child. The trial court disagreed. It appointed all three parties as joint managing conservators and granted the great aunt’s request that she have the right to designate the child’s primary residence.
On appeal, the child’s mother argued that she had been unconstitutionally deprived of conservatorship of her child because the trial court did not apply the presumption. But the Fourteenth Court of Appeals affirmed, holding that even if Chapter 156 did include the parental presumption, it had been rebutted by the fact that the great aunt had had the child for at least a year – which is how the parental presumption can be rebutted in original SAPCRs under Chapter 153 of the Family Code. Accordingly, there was no need to address the constitutional issue.
* Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR.
(a) Subject to the prohibition in Section 153.004, 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.
(b) 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. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
** Sec. 153.373. VOLUNTARY SURRENDER OF POSSESSION REBUTS PARENTAL PRESUMPTION.
The presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that:
(1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit; and
(2) the appointment of the nonparent or agency as managing conservator is in the best interest of the child.