In re T.D.C.

• Decision Date: 21 November 2002
• Docket Number: No. 2-00-356-CV.,2-00-356-CV.
• Citation: 91 S.W.3d 865
• Parties: In the Interest of T.D.C., A Child.
• Court: Texas Court of Appeals

Page 865

91 S.W.3d 865

In the Interest of T.D.C., A Child.

No. 2-00-356-CV.

Court of Appeals of Texas, Fort Worth.

November 21, 2002.

COPYRIGHT MATERIAL OMITTED

David R. Sweat, Arlington, for appellant.

Chris Harris & Associates, P.C., Chris Harris, David L. Cook, Arlington, for appellee.

PANEL A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

OPINION ON REHEARING

JOHN CAYCE, Chief Justice.

We withdraw our opinion and judgment issued on July 11, 2002, and substitute the following in their place.

Appellant Tony Wayne Cook II appeals from the trial court's order awarding appellee Stoney Short primary managing conservatorship of Tony's child with the exclusive right to establish the child's permanent residence, the right to receive and disburse child support benefits, and the right to make educational decisions for the child. Tony is the biological father of T.D.C., and Stoney is a nonparent. Tony also challenges the trial court's award of attorney's fees to Stoney. We will reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Tony Wayne Cook II and Martina Kaye Short are the biological parents of T.D.C. Tony and Martina were not married when T.D.C. was born. On March 3, 1995, when T.D.C. was eight months old, Martina filed a petition to establish paternity in Tony in the 249th District Court of Johnson County. On December 20, 1995, the Johnson County district court entered an order that Tony was T.D.C.'s father. The court appointed Martina as managing conservator with the exclusive right to determine T.D.C.'s primary residence, and Tony was named possessory conservator. The court also changed T.D.C.'s last name from "Short," the last name of Martina's ex-husband, Stoney Short, to Tony's last name, "Cook."

Although Tony was given visitation rights to T.D.C., Martina soon made it clear that she did not want Tony to have a parental relationship with T.D.C., and she made it very difficult for him to visit T.D.C. Between December 20, 1995 and February 17, 1996, Tony attempted on several occasions to arrange times to visit T.D.C., but Martina either did not respond to his requests or denied them. On December 30, 1995, Tony filed charges against Martina for interference with child custody, but later dropped the charges because Martina permitted him to visit T.D.C. After this visit, Martina again refused Tony's subsequent requests to visit T.D.C. Tony's work schedule with the police department had changed, making the ordered Saturday visits impossible. Martina refused to voluntarily alter the visitation schedule, and although Tony contacted the attorney general's office for assistance in enforcing his visitation rights, Mrs. Gray told him "that [this] was the schedule they were going to stay with until my son reached three years old." According to Tony, Martina "said that she didn't know why [Tony] bothered. [T.D.C.'s] not going to know [him] as the father. And — he never will know [Tony] as his father.... [S]he was going to tell him that ... Stoney's his father." Martina also attempted to change T.D.C.'s last name back to Short.

From February 17, 1996 through July 6, 1998, Tony had no contact with T.D.C. He stated that he did not try to force his way into Martina's and T.D.C.'s lives because he thought it would be detrimental to the child. During this time, Tony believed that T.D.C. lived with Martina and never received any information to the contrary. Although Tony did not insist on maintaining his visitation rights in the face of Martina's refusal to allow him to see T.D.C., Tony continued to pay child support and insurance for T.D.C., even when T.D.C. was in Stoney's custody.¹

In May 1997, Stoney married Julie Dawn Short. Martina relinquished control of T.D.C. to Stoney in June 1997.² Neither Martina nor Stoney ever informed Tony that T.D.C. began living exclusively with Stoney and Julie in June 1997. Tony first learned that T.D.C. was living with Stoney when Stoney filed his petition for modification in Johnson County district court on May 27, 1998, requesting that he be appointed sole managing conservator for T.D.C. In response to Stoney's petition, Tony filed a counter-petition to modify the parent-child relationship, asking that he be named managing conservator.

On September 3, 1998, the Johnson County district court made an oral pronouncement giving Tony specific periods of possession and entered a temporary injunction to preserve the status quo. This oral pronouncement was reduced to a written order and signed on November 23, 1999.

On July 7, 1999, Stoney filed a petition for writ of habeas corpus in the Johnson County district court, alleging he had the right of possession of T.D.C. and that T.D.C. was illegally restrained by Tony. Tony allegedly had refused to return T.D.C. to Stoney after visiting with him over the Fourth of July weekend in 1999. The district court denied Stoney's petition, and on July 23, 1999, Stoney and T.D.C.'s ad litem attorney agreed to the entry of a temporary order that appointed Tony as temporary sole managing conservator with the right to determine the primary residence of the child. T.D.C. then began living with Tony.

On October 6, 1999, the case was transferred from Johnson County to the 233rd District Court of Tarrant County pursuant to a motion to transfer filed by Martina on the grounds that T.D.C. had been a resident of Tarrant County for six months, and because none of the other parties to the proceedings resided in Johnson County. Following the transfer, and three months after Stoney voluntarily agreed to allow Tony to be appointed temporary managing conservator of T.D.C., Stoney filed a motion requesting the Tarrant County district court to reverse the previous rulings of the Johnson County trial court.

An associate judge held a hearing on Stoney's motion to reconsider the petition for habeas relief on November 22, 1999. The associate judge ordered that T.D.C. be returned to Stoney and restricted Tony's possession to the terms of the September 3, 1998 oral pronouncement of the Johnson County district court. Tony appealed the associate judge's ruling to the presiding judge of the 233rd District Court.

In the meantime, Tony also filed an application for habeas corpus relief to enforce his right of possession under the July 23, 1999 temporary order of the Johnson County district court, alleging Stoney was illegally restraining T.D.C. from visiting him. After a hearing, the associate judge set aside the temporary order and denied Tony's habeas corpus application. Tony immediately appealed these rulings to the Tarrant County district court. On December 20, 1999, the Tarrant County district court heard the appeals, set aside both Johnson County orders, denied Tony's application for habeas corpus relief, and set a new possession schedule for Tony.

The case proceeded to trial on May 3, 2000. After two days of testimony,³ the trial court rendered judgment appointing Stoney and Tony as joint managing conservators and granting Stoney the exclusive right to make decisions regarding T.D.C.'s residency and education and disbursement of child support payments. Martina was removed as managing conservator and designated as a possessory conservator, with possession left to the discretion of Stoney. Tony's rights under the judgment include all rights and duties normally associated with parenthood, except the right to establish T.D.C.'s primary residence and the right to make educational decisions on T.D.C.'s behalf. Tony is also required to make child support payments to Stoney, which Stoney is authorized to manage and disburse "for the benefit of the child."

II. THE PARENTAL PRESUMPTION

In Tony's first issue, he argues the trial court should have applied the parental presumption at the modification proceeding and awarded him primary managing conservatorship. See TEX. FAM.CODE ANN. § 153.131(a) (Vernon 2002). He contends the trial court erred in appointing Stoney primary managing conservator with the exclusive right to establish T.D.C.'s residence, without first finding that it was not in T.D.C.'s best interests to have Tony appointed in that capacity because it significantly impairs the child's physical health and emotional development. See Phillips v. Beaber, 995 S.W.2d 655, 660 (Tex.1999) (holding exclusive right to determine primary residence of child is equivalent of having "custody" of child).

The natural right existing between parents and their children is of constitutional dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). This natural parental right has been characterized as "essential," a "basic civil right[] of man," and "far more precious ... than property rights." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Holick, 685 S.W.2d at 20. "[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made." Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 2064, 147 L.Ed.2d 49 (2000). There is a legal presumption that awarding custody to a parent is in the best interests of the child. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). The basis for the parental presumption is the "natural affection usually flowing between parent and child." Id.

The legislature codified the presumption in chapter 153 of the family code, which governs original custody determinations:

[U]nless 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.

TEX. FAM.CODE ANN. § 153.131(a). In an original custody suit, a nonparent can be appointed as joint managing...