Contact Jerry Melton for a free initial consultation.

Grandparents and Other Third Parties
(Suit Affecting the Parent Child Relationship)

PARENTAL PRESUMPTION

In Texas, there is a strong presumption that the best interest of the child is served if a natural parent is awarded custody. See Brook v. Brook, 881 S.W.2d 297,299(Tex. 1994). This parental presumption imposes a heavy burden on a non-parent seeking conservatorship. See In re W.G.W, 812 S.W.2d 409, 413 (Tex.App. - Houston [1st Dist.], no writ). The parental presumption may be rebutted by a non-parent if the court finds that appointment of the parent as managing conservator would not be in the best interest of the child because a parental appointment would significantly impair the child's physical health or emotional development. See In re M.W, 959 S.W.2d 661, 665 (Tex.App. - Tyler 1997, writ denied), no writ). The non-parent must "prove by a preponderance of credible evidence that awarding custody to the parent would result in serious physical or emotional harm to the child." See id.; Brook, 881 S.W.2d at 298.There must be evidence of specific, identifiable behavior that the parent will cause harm to the child. See In re M.W, 959 S.W.2d at 665. Absent such specific evidence, general evidence that a non-parent would be a better custodian of the child is inadequate to rebut the parental presumption. See In re W.G.W, 812 S.W.2d at 413. [Author's note: For an in depth, constitutional analysis of the parental presumption, see "Standing," by Janet McCullar Vavra and Jimmy Vaught, Advance Family Law Course 2007, Chapter 17.]