381 S.W.3d 540
Supreme Court of Texas.
Ann Wood SHOOK, Petitioner,
v.
David GRAY, Respondent.
No. 11–0155.
Oct. 5, 2012.
Prior History:
Core Terms
shake, trial court, appoint, custodial, court of appeals, sole management, conservatorship
Case Summary
Procedural Posture
The Court of Appeals for the Thirteenth District of Texas remanded a custody case to the trial court for hearings to determine the custody and visitations rights as between respondent father and real party in interest mother. Petitioner grandmother's motion for rehearing of her petition for review was granted.
Overview
The grandmother argued that the court of appeals should not have precluded the trial court from considering her role in the cihld's life on remand. The supreme court agreed. By foreclosing the trial court from considering the grandmother on remand, it may be unable to protect the child's best interest, Tex. Fam. Code Ann. § 153.002. The trial court had to consider the changed circumstances. Even assuming the grandmother previously failed to present evidence capable of overcoming the parental presumption, it did not follow that she would necessarily be unable to overcome the parental presumption under the present circumstances. The grandmother had established a general standing to file a suit for conservatorship and access, as someone who had had care, control, and possession of a child for the designated time, Tex. Fam. Code Ann. § 102.003.
Outcome
Synopsis
Background: Unwed father filed an original suit affecting the parent-child relationship, requesting that he and mother be appointed joint managing conservators and that mother be given the primary right to establish child's residence. Maternal grandmother intervened on the basis that she had actual care, control, and possession of child, and she requested that she and mother be appointed joint managing conservators. The District Court, Victoria County, Juergen Skipper Koetter, J., appointed grandmother as child's sole managing conservator and named father and mother as child's possessory conservators, and appeal was taken. The Court of Appeals, Corpus Christi, reversed and remanded, and grandmother appealed.
Holding: The Supreme Court held that, by preventing trial court from considering grandmother for conservatorship of or access to child, Court of Appeals unduly restricted trial court's ability to protect child's best interest.
Affirmed in part and reversed in part.
West Headnotes (2)Collapse West Headnotes
Court of Appeals erred when it directed trial court, on remand, to reconsider conservatorship and access rights between unwed father and mother only, and by preventing trial court from considering maternal grandmother, who had cared for child, for conservatorship of or access to child, Court of Appeals unduly restricted trial court's ability to protect child's best interest; child was now nine years old and over four years had passed since trial court issued its order, appointing grandmother as child's sole managing conservator and naming father and mother as child's possessory conservators, and even if grandmother had previously failed to overcome parental presumption, it did not follow that she would necessarily be unable to overcome parental presumption under the present circumstances. V.T.C.A., Family Code § 153.002.
Maternal grandmother pled and established general standing to file a suit for conservatorship and access, as someone who had care, control, and possession of child for the designated time, and grandmother's inability to overcome the parental presumption did not deprive her of standing to be considered for conservatorship or access, and if she failed to overcome the presumption that a parent should be named managing conservator on remand, the trial court could still name grandmother as a possessory conservator or grant her access if that would be in child's best interest. V.T.C.A., Family Code § 102.003.
Opinion
PER CURIAM.
G.W., David Gray and Lucy Wood's nine-year-old daughter, has lived with her maternal grandmother, Ann Shook, for her entire life.Although G.W.'s parents have been in and out of her life to varying degrees since she was born, no one disputes that at the time of the custody hearing the grandmother's home was the only home G.W. had ever known. We are asked to decide whether the court of appeals erred by remanding this case to the trial court for hearings to determine the custody and visitation rights as between Gray and Wood only. We grant Shook's motion for rehearing of her petition for review and, pursuant to Rule 59.1 of the Rules of Appellate Procedure, hold that, by barring the trial court from considering Shook, the court of appeals unduly restricted the trial court's ability to protect the child's best interest.
When G.W. was three-and-a-half years old, Gray filed an original suit affecting the parent-child relationship requesting that he and Wood be appointed joint managing conservators and that Wood be given the primary right to establish G.W.'s residence.1 Shook intervened on the basis that she “has had actual care, control, and possession of [G.W.] for more than 6 months ending no more than 90 days preceding *542 the date of filing of [the] petition.” See TEX. FAM.CODE § 102.003(a)(9). She requested that she and Wood be appointed joint managing conservators and that she be named the joint managing conservator with the exclusive right to designate G.W.'s primary residence. She also asked that Gray be appointed possessory conservator. Subsequently, Gray amended his petition to request that the trial court appoint him joint managing conservator with the exclusive right to establish G.W.'s residence. Gray did not specify who should be named the other joint managing conservator.
Shortly after G.W. was born, G.W. and her mother moved into Shook's home in Victoria, Texas. At the time of the custody hearing, when G.W. was almost five years old, G.W. still lived with Shook. Wood had moved out of Shook's home to live on her own two years earlier, and Gray had lived in Houston, New Jersey, Colorado, and Seattle between G.W.'s birth and the time of the custody hearing. The trial court appointed Shook as G.W.'s sole managing conservator and named Gray and Wood as G.W.'s possessory conservators.
The court of appeals reversed, holding that the trial court abused its discretion in naming Shook, a nonparent, as G.W.'s sole managing conservator because Shook failed to present any evidence that could overcome the presumption that a parent should be named as managing conservator. 329 S.W.3d at 198–99; TEX. FAM.CODE § 153.131 (stating that a parent shall be appointed as a sole managing conservator or both parents shall be appointed as joint managing conservators “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”). Additionally, the court of appeals remanded the case for the trial court to reconsider the conservatorship and access rights between Gray and Wood only and explained:
[T]he trial court held in Shook's favor, making it unnecessary for that court to determine G.W.'s best interest as it related to the custodial or visitation rights that should exist between Gray and [Wood] only. Because of this, and because we have overturned the trial court's ruling designating Shook as sole managing conservator, we find it to be in the interest of justice not to simply render judgment in Gray's favor. Further, more than a year has passed since the custodial hearing; circumstances may have changed during this time such that it would not be in G.W.'s best interest to appoint Gray as her sole managing conservator, and we have no ability to determine the present circumstances of any of the parties, nor do we have the luxury of sitting as a fact-finder. For the forgoing reasons, we remand this case to the trial court for custodial hearings to determine the rights as between Gray and [Wood] only.
329 S.W.3d at 199. Shook contends that the court of appeals should not have precluded the trial court from considering her role in G.W.'s life on remand. We agree.
1By foreclosing the trial court from considering Shook on remand, the trial court may be unable to protect G.W.'s best interest.TEX. FAM.CODE § 153.002 (“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.”). As the court of appeals pointed out, it had “no ability to determine the present circumstances of any of the parties, nor d[id it] have the luxury of sitting as a fact-finder.” Id. That statement illustrates the problem with remanding for custodial hearings between Gray and *543 Wood only. The trial court must be able to consider the changed circumstances. G.W. is now nine years old and over four years have passed since the trial court issued its order. Even assuming Shook previously failed to present evidence capable of overcoming the parental presumption, it does not follow that she will necessarily be unable to overcome the parental presumption under the present circumstances.
2Moreover, Shook pled and established general standing to file a suit for conservatorship and access, as someone who has had care, control, and possession of a child for the designated time. TEX. FAM.CODE § 102.003 (authorizing suit by “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”). Shook's inability to overcome the parental presumption does not deprive her of standing to be considered for conservatorship or access. If Shook fails to overcome the presumption that a parent should be named managing conservator on remand, the trial court may still name Shook as a possessory conservator or grant her access if that would be in G.W.'s best interest.
Thus, we conclude that the court of appeals erred in preventing the trial court from considering Shook for conservatorship of or access to G.W. Accordingly, without hearing oral argument, we affirm the court of appeals' judgment remanding the case, but reverse to the extent the judgment limits the trial court's consideration of the role Shook should play in G.W.'s life, whether as conservator or a person with defined access rights. TEX.R.APP. P. 59.1.
Parallel Citations
56 Tex. Sup. Ct. J. 10Footnotes
In his petition, Gray stated, “The best interest of [G.W.] will be served by the appointment of Lucy Wood as joint managing conservator with the exclusive right to designate the primary residence of the child, and [Gray] so requests.” Gray further requested that “appropriate orders be made for access to the child and the allocation of the rights and duties of the conservators.” Although Gray does not explicitly state the type of conservatorship he sought, we infer that he wished to be named a joint managing conservator.