In the Interest of V.L.K., 99-0843

CourtSupreme Court of Texas
Writing for the CourtJAMES A. BAKER
Citation24 S.W.3d 338
Parties(Tex. 2000) In the interest of V. L. K
Docket NumberNo. 99-0843,99-0843
Decision Date12 April 2000

Page 338

24 S.W.3d 338 (Tex. 2000)
In the interest of V. L. K.
No. 99-0843
IN THE SUPREME COURT OF TEXAS
Argued on April 12, 2000
Opinion Delivered: June 22, 2000
Rehearing Overruled August 24, 2000

On Petition for Review from the Court of Appeals for the Second District of Texas

Page 339

JAMES A. BAKER, Justice.

This is a child custody case. The issue here is whether the parental presumption, codified in Family Code section 153.131--that it is in the best interest of a child to be with a natural parent unless the appointment would impair the child's physical health or emotional development--applies in a custody modification suit under Family Code section 156.101. We hold that the parental presumption applies only

Page 340

in original custody determinations and does not apply in a modification suit. Therefore, we reverse the court of appeals' judgment and render judgment for the Hickses.

I. BACKGROUND

In September 1994, when V.L.K. was fourteen-months old, his mother Leigh Ann Kilgore shot and killed V.L.K.'s father. Kilgore was charged with murder and was released from jail after posting bond. The court later revoked her bond, and Kilgore spent from February 18, 1995 to March 21, 1995 in jail. During this time, V.L.K. stayed with Donna and Rick Chabot, Kilgore's sister and brother-in-law. In August 1995, the court again revoked Kilgore's bond, and she returned to jail to await trial. In August 1995, the Chabots arranged for V.L.K. to stay with Medina and James Hicks, V.L.K.'s paternal aunt and uncle, while the Chabots completed their new home. During this time, Mr. Chabot was diagnosed with a serious illness. The Hickses agreed to keep V.L.K. while the Chabots sought medical treatment in Denver. Meanwhile, Kilgore's trial date was reset from January 1996 to May 1996.

Fearing that the Hickses would try to obtain permanent custody of V.L.K., Kilgore filed an agreed decree in January 1996 appointing her mother, Jean Christiansen, V.L.K.'s managing conservator and designating herself possessory conservator.1 The court signed the order on January 9, 1996. Kilgore did not notify the Hickses of this agreed order. Furthermore, even after the change in conservatorship, Christiansen left V.L.K. in the Hickses' care. At that time, Christiansen lived in Vienna, Austria. In April 1996, after the Hickses learned about the agreed decree, they filed a motion to modify, requesting that they be appointed joint managing conservators. Kilgore filed a cross-petition requesting that the January 1996 decree be modified to appoint her as sole managing conservator. Christiansen filed an answer requesting that either Kilgore or Donna Chabot be named sole managing conservator.

At a pretrial conference, the Hickses argued that the parental presumption that normally governs in a custody dispute between a parent and a nonparent did not apply. They contended that when Kilgore appointed Christiansen as sole managing conservator, she voluntarily relinquished the right to that presumption and that Kilgore should be treated the same as a nonparent. The Hickses also argued that the parental presumption applies only in original custody determinations and not in a modification proceeding. The trial court agreed that the presumption did not apply in this case.

At the charge conference, the Hickses argued that the jury should be instructed that, in this case, there is no presumption that a parent should be appointed as managing conservator. Kilgore objected, and asked the court to instruct the jury that the parental presumption applied. Alternatively, Kilgore argued that the trial court should not include the "no presumption" instruction in the charge because it would move the jury from a neutral position to one that disfavored Kilgore. The trial court overruled Kilgore's objections and included the following instruction in the charge:

NO PRESUMPTION

There is no presumption that a parent should be appointed as managing conservator if there has previously been an order of custody awarding conservatorship to a third party, or if the parent has voluntarily relinquished actual care, control,

Page 341

and possession of the child to a nonparent for a period of one year or more, a portion of which was within ninety days preceding the date of intervening in or filing of this suit and the appointment of the nonparent as managing conservators [sic] is in the best interest of the child.

The jury determined that the Hickses should be appointed managing conservators, and the trial court rendered judgment on the jury's verdict. The court named Kilgore possessory conservator.

Kilgore appealed, asserting that the "no presumption" instruction was legally erroneous and that the parental presumption should apply in this case. The court of appeals agreed, holding that the parental presumption applied and that the trial court abused its discretion when it gave the jury the no presumption instruction. Accordingly, the court of appeals reversed the trial court's judgment and remanded the case for a new trial. 993 S.W.2d 887.

In their petition for review to this Court, the Hickses assert that the trial court properly instructed the jury that the parental presumption does not apply in modification suits. The Hickses also assert that the parent and nonparent have equal burdens in a modification proceeding: to show that a change in circumstances has occurred and appointing them managing conservator would be a positive improvement for the child. Kilgore responds that the parental presumption applies to modification suits. Alternatively, Kilgore argues that even if the presumption does not apply in every modification proceeding, it applies if the parties in the modification suit are different parties than those involved in the original custody determination. Therefore, Kilgore argues that the court of appeals correctly held that the "no presumption" instruction was error.

II. APPLICABLE LAW

A. Standard of Review

We review a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard of review. See Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). The trial court has considerable discretion to determine necessary and proper jury instructions. See Knighten, 976 S.W.2d at 676.

B. Managing Conservatorship

The presumption that the best interest of the child is served by awarding custody to the parent is deeply embedded in Texas law. See Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990) (citing Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963) and Legate v. Legate, 28 S.W. 281, 282 (Tex. 1894)). The parental presumption is based upon the natural affection usually flowing between parent and child. See Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955). The Legislature codified the presumption in Chapter 153 of the Family Code, which governs original custody determinations:

Unless the court finds that the appointment of the parent or parents would not be in the best interest of the...

To continue reading

Request your trial
311 practice notes
  • Sales v. Autobuses, No. 09-0048.
    • United States
    • Supreme Court of Texas
    • 17 December 2010
    ...we generally review a trial court's refusal to submit a particular instruction under an abuse of discretion standard, see In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000), an issue of statutory construction is a legal question which we review de novo. See Duenez, 237 S.W.3d at 683; see also Gall......
  • Formosa Plastics Corp. v. Kajima Intern., No. 13-02-00385-CV.
    • United States
    • Court of Appeals of Texas
    • 28 December 2006
    ...contracts. 2. Charge Error Standard of Review The standard of review for error in a jury charge is abuse of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000); R & R Contrs. v. Torres, 88 S.W.3d 685, 696 (Tex.App.-Corpus Christi 2002, pet. dism'd). We accord the trial court broad discr......
  • Txi Transp. Co. v. Hughes, No. 2-04-242-CV.
    • United States
    • Court of Appeals of Texas
    • 24 May 2007
    ...when the trial court 224 S.W.3d 900 acts arbitrarily, unreasonably, or without reference to guiding rules or principles. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.E......
  • Bates v. Tesar, No. 08-01-00026-CV.
    • United States
    • Court of Appeals of Texas
    • 6 June 2002
    ...intent to apply the presumption in Chapter 156 modification suits, courts should not apply the presumption in those cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). Similarly, we conclude that the presumption favoring joint managing conservatorship does not apply in modification proceed......
  • Request a trial to view additional results
321 cases
  • Bates v. Tesar, 08-01-00026-CV.
    • United States
    • Court of Appeals of Texas
    • 6 June 2002
    ...intent to apply the presumption in Chapter 156 modification suits, courts should not apply the presumption in those cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). Similarly, we conclude that the presumption favoring joint managing conservatorship does not apply in modification proceed......
  • Txi Transp. Co. v. Hughes, 2-04-242-CV.
    • United States
    • Court of Appeals of Texas
    • 24 May 2007
    ...when the trial court 224 S.W.3d 900 acts arbitrarily, unreasonably, or without reference to guiding rules or principles. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.E......
  • Formosa Plastics Corp. v. Kajima Intern., 13-02-00385-CV.
    • United States
    • Court of Appeals of Texas
    • 28 December 2006
    ...contracts. 2. Charge Error Standard of Review The standard of review for error in a jury charge is abuse of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000); R & R Contrs. v. Torres, 88 S.W.3d 685, 696 (Tex.App.-Corpus Christi 2002, pet. dism'd). We accord the trial court broad discr......
  • Huff Energy Fund, L.P. v. Longview Energy Co., 04–12–00630–CV
    • United States
    • Court of Appeals of Texas
    • 25 November 2015
    ...P. 47.1. We review a trial court's decision to submit a jury question or instruction under an abuse of discretion standard. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). "A clear abuse of discretion exists when the trial court submits a jury question that is neither supported by the pleading......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT