In a family law suit, the law provides that a child’s parents will be named the child’s managing conservators unless such an appointment will “significantly impair the child’s physical health or emotional development.” Tex. Fam. Code § 153.131(a). Separating a child from “the only person who has consistently cared for her for the majority of her life” was found to potentially significantly impair a child’s emotional development. In re K.R.P., 80 S.W.3d 669 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). But consistency alone will not justify a court making a non-parent a child’s managing conservator. The law requires additionally that the court find specific acts or omissions that would result in harm to the child. Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990). This article will explore two cases that consider a child being cared for by a non-parent for most of the child’s life, and how the courts came to different conclusions regarding the children’s emotional development would be effected by separation from that caregiver.
In re K.R.P., 80 S.W.3d 669, the child had what may be described as a tumultuous living arrangement in her early years. For approximately the first three years of her life she lived with her unmarried parents and sometimes her great grandmother. Then she lived with her father and his girlfriend Keridi, whom the father later married. During her father’s incarceration, she remained with Keridi. When her father and Keridi split up, she lived with her father and great grandmother for a few months but then back again with Keridi until the time of trial.
The trial court appointed Keridi to be the child’s managing conservator. Since the child had been consistently cared for by Keridi and since the father had a criminal history and a history of abuse, the court determined she was the most appropriate person to care for child and that separating her from the child would significantly impair the child’s emotional development. Even the child’s mother agreed this was in the child’s best interest.
Bhan v. Danet, 402 S.W.3d 668 (Tex. App.—Houston [1st Dist.] 2013, pet. filed) also concerned caregivers who had cared for the child consistently, but there the appellate court determined that appointment of the child’s mother as a managing conservator—and thus separating the child from “the only home he has ever known”—would not significantly impair the child’s emotional development. There, the court considered the mother’s criminal record and other actions—such as sneaking into a museum without paying, bringing a string of different men to her visits with her child, and not calling the child for a long period of time—and whether these actions impaired the child’s emotional development.
Yet the court took into account the fact that mother’s actions had occurred in the past. The mother had since undergone drug counseling and took parenting classes. She further intended to go to counseling with the child. These acts thus did not rise to the level of specific acts or omissions of the parent that would result in harm to the child, as the law requires before a non-parent can be made a managing conservator. See Lewelling, 796 S.W.2d 164. Without harmful acts or omissions from the mother, the caregivers of the child then could not rely only on the notion that removing the child from their custody would be traumatic for the child, and the appellate court appointed the mother to be the child’s managing conservator.
Judges have wide discretion in applying the Family Code and will look at each family’s unique circumstances in making their decision regarding custody of children. Short of abuse, rarely will one factor—a criminal history or consistency of care, for example—be dispositive on the issue. As long as the judge finds some evidence to support its decision, a judge acts within his discretion.