Interest of Barrera
| Citation | 531 S.W.2d 908 |
| Decision Date | 31 December 1975 |
| Docket Number | No. 8611,8611 |
| Parties | In the Interest of Victor BARRERA and Valentin Barrera, Jr., minor children. |
| Court | Texas Court of Appeals |
Godinez & Abeyta (F. B. Godinez, Jr.), Lubbock, for appellants.
Law Offices of Tom Upchurch, Jr. (Stephen F. Scott, Jr.), Amarillo, for appellees.
Juanita Barrera Gonzales, respondent-appellant, brings this appeal from a decree of the district court appointing Fernando Hernandez and wife, Narcisa Hernandez, petitioners-appellees, as managing conservators of two minor children, Victor Barrera, born June 27, 1966, and Valentin Barrera, Jr., born August 16, 1968. The appellant is the natural mother of the children, and the appellees are the parents of the appellant. Affirmed.
In 1970, appellant's husband, the natural father of Victor and Valentin, Jr., was killed as a result of an on the job accident. Shortly after his death, appellant allowed the two children whose custody is in issue to live with appellant's parents, the maternal grandparents of the children.
On July 12, 1974, Juanita Barrera Gonzales made application for a show cause order why Fernando and Narcisa Hernandez should not be ordered to deliver the children to her. On July 19, 1974, Fernando and Narcisa Hernandez filed a petition in the district court seeking a change of custody and their appointment as managing conservators of the children. Respondent answered denying the allegations of petitioners and praying that the children be delivered to respondent. After a hearing, petitioners were appointed temporary managing conservators and respondent temporary possessory conservator. On February 11, 1975, the cause was heard on its merits by the court without a jury. No formal findings of fact or conclusions of law were requested or made. In its decree the trial court found: 'that the best interests of the children will be served by appointing the maternal grandparents, . . . as managing conservators, to have all the rights, duties and responsibilities of parents as set out in the Texas Family Code, Sections 12.04 and 14.02, subject to the rights and duties of the temporary possessory conservator.' The decree entered by the court is in accordance with this finding. From this decree the appellant has brought her appeal on three points of error.
In her first point appellant contends that the trial court erred in disregarding the rule under Tex.Prob.Code Ann. § 109(a) that the surviving parent has the right to managing conservatorship of the children. Section 109 of the Texas Probate Code is entitled 'Persons Qualified to Serve as Guardians.' The relevant portion of Section 109(a) relied upon by appellant in support of her position provides: 'If one parent is dead, the survivor is the natural guardian of the person of the minor children, and is entitled to be appointed guardian of their estates.' Even though, after the death of Valentin Barrera, the appellant was issued letters of guardianship of the children by the county court, the guardianship is no impediment to the exercise by the district court of its equity powers in a suit involving the custody of minors. Thompson v. Doyal, 209 S.W.2d 425 (Tex.Civ.App., Austin 1948, writ ref'd n.r.e.). Although there is a presumption that a surviving parent is the most suitable person to have custody of minor children, the controlling consideration is the best interest of the children. 44 Tex.Jur.2d Parent and Child § 13, at 38, and cases cited therein. Since the welfare of children is the court's paramount concern and guiding consideration in any contest over the right to custody, this concern and consideration will prevail over any asserted claim of legal right in a party to the controversy. Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Appellant's point of error number one is overruled.
In her second and third points of error appellant complains of the admission by the trial court of evidence concerning her past conduct to show her present unfitness and of the insufficiency of the evidence to satisfy the burden upon appellees to prove that appellant was unfit to have custody of the children. It is not always necessary in child custody cases that the evidence show natural parent is unfit, e.g., where the natural parent has voluntarily surrendered possession of the child to another which possession continued for a substantial period of time. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Guillott v. Gentle, 467 S.W.2d 521 (Tex.Civ.App., Eastland 1971, writ ref'd n.r.e.). As stated in Herrera, 'The legal custody of a minor is in the parents or the surviving parent, Unless there has been a court adjudication awarding the legal custody to a third party.' 409 S.W.2d, at 396. The court further stated that under circumstances of voluntary surrender of possession continued for a substantial period of time, a court may terminate the custody rights of the parent when it is in the best interest of the child to do so.
In determining the best interests of the child the court must consider the circumstances of the parents. Tex. Family Code Ann. § 14.07(b). It is recognized that there is a presumption that the interests of a child are best served when custody is awarded to the natural parents. However, this presumption is rebuttable. Legate v. Legate, supra. As stated in Legate:
'Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief unless, upon a hearing of all the facts, it is of the opinion that the best interest of the child would be promoted thereby. 28 S.W. at 282.
Appellees had the burden of proving that the best interests of the children would be served by depriving appellant, their natural mother, of custody. Mumma v. Aguirre, supra. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955). However, if there is evidence to support the finding of the trial court as to the best interest of the children its decree must be affirmed. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).
The record reveals that the children have been allowed to live with appellees since shortly after the death of their father in 1970. At the time appellant filed her application for the show cause order, the children had lived with appellees for nearly 4 years since they...
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Neely v. Neely
...Yancey v. Koonce, 645 S.W.2d 861 (Tex.App.1983, writ ref'd n.r.e.), (parents left child with grandparents); In Interest of Barrera, 531 S.W.2d 908 (Tex.Civ.App.1975, no writ), (father allowed children to live with grandparents for four years after mother's death); Smitheal v. Smitheal, 518 ......
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Cooper v. Texas Dept. of Human Resources, 14256
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Yancey v. Koonce, 7114
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Stuart, In Interest of
...valid temporary order issued out of the pending termination suit. Appellant's points 1 and 2 are, therefore, overruled. See Interest of Barrera, 531 S.W.2d 908 (Tex.Civ.App.--Amarillo 1975, Judgment affirmed. 1 'If the right to possession of a child is not governed by a court order, the cou......