In the Interest of V.L.K.
| Decision Date | 12 April 2000 |
| Docket Number | No. 99-0843,99-0843 |
| Parties | (Tex. 2000) In the interest of V. L. K |
| Court | Texas Supreme Court |
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 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.
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 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.
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.
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) (). 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 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 § 153.131(a)2. Thus, under Chapter 153, the nonparent can rebut the parental presumption by showing that the appointment of the parent would significantly impair the child's health or development. See Brook v. Brook, 881 S.W.2d 297, 298 (Tex. 1994). Chapter 153 also provides that the parental presumption is rebutted if the natural parent has "voluntarily relinquished actual care, control, and possession of the child to a nonparent" for one year or more and the appointment of a nonparent as managing conservator is in the best interest of the child. Tex. Fam. Code § 153.373. A court's primary consideration in any conservatorship case "shall always be the best interest of the child." Tex. Fam. Code § 153.002.
After a court makes an original custody determination, a party may move to modify that determination. See Tex. Fam. Code § 156.002. Section 156.101 provides the grounds for modifying conservatorship:
(a) The court may modify an order that designates a sole managing conservatorship of a child of any age if:
(1) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; and
(2) the appointment of the new sole managing conservator would be a positive improvement for the child.
Tex. Fam. Code § 156.101(a). Thus, any person who seeks to modify an existing custody order must show (1) changed circumstances and (2) that modification would be a positive improvement for the child. Chapter 156 does not provide for a parental presumption in modification suits. Likewise, this Court has held that the parental presumption does not control in modification suits. See Taylor, 276 S.W.2d at 790.
Here, the court of appeals held that "the preference in favor of appointment of a natural parent as the child's managing conservator was not obliterated" by the agreed order naming a third party managing conservator. 993 S.W.2d at 892. Further, the court concluded that the trial court abused its discretion when it instructed the jury that a parent is not entitled to the presumption. 993 S.W.2d at 892.
The Hickses assert that the court of appeals' holding, while implying that the parental preference is no more than a factor in a modification suit, in fact places a higher burden of proof on the nonparent to be named managing conservator. This higher burden, they argue, is appropriate only in original custody proceedings where the statutory parental presumption applies. Further, the Hickses allege that the trial court's instruction that no presumption applied in this case was necessary to overcome the natural tendency to assume that granting...
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