recognizing that while proceeding is not technically termination of parental rights action, it may have such effect where mother without adequate transportation lives some distance from son and existence of visitation rights likely will be insufficient to allow her "to have a substantial role in her child's upbringing"
How later courts described this case
- recognizing that while proceeding is not technically termination of parental rights action, it may have such effect where mother without adequate transportation lives some distance from son and existence of visitation rights likely will be insufficient to allow her "to have a substantial role in her child's upbringing"
- explaining that “evidence that a parent is a victim of spousal [or partner] abuse, by itself, is no evidence that awarding custody to that parent would significantly impair the child” and that “[a] parent should not be denied custody of a child based on the fact that he or she has been battered”
- holding that evidence that parent is victim of spousal abuse and that parent is unemployed, living in crowded conditions, and had multiple visits to mental hospital was no evidence that awarding custody to parent would significantly impair child
- finding parent should be named managing conservator unless nonparent offers evidence of “specific actions or omissions” that demonstrate awarding custody to parent would physically or emotionally harm child
Written by the judges who cited it.
The opinion
COOK, Justice,
concurring.
I concur with the majority. I am, however, disturbed by the reasoning of my colleague and write separately to address those contentions.
Section 14.01(b) of the Texas Family Code was amended by the legislature in 1987. The legislature provided in the amendment that the only satisfactory reason to deny a parent appointment as a managing conservator is “because the appointment would significantly impair the child’s physical health or emotional development.” While there may be many reasons appointment of a parent would not be in the best interests of the child, the only one before us today sufficient to rebut the parental presumption is the one stated in the amendment. What this in effect means is that although another party, such as a grandparent, might be a better custodian of a child, this fact is not sufficient to rebut the parental presumption, absent the significant impairment of the child’s physical health or emotional development.
The testimony clearly showed that Brenda Lewelling was a good mother. No one testified that she was in any way harmful to the child. The testimony was clear that she kept the child clean, neat, well fed, provided a clean and neat home, took the child to the doctor, and was fully capable of providing for him. Her testimony that she loved the child was demonstrated by her actions. This testimony came from numerous witnesses regarding the mother. There is no evidence to rebut the parental presumption in favor of the mother.
The legislature, in passing the amendment to § 14.01(b), did not do so to simply add additional verbiage to the Family Code. It did so because it was establishing a bright line test to be used with respect to the parental presumption. In this particular case, that test has not been met.
The dissent correctly points out that trial courts are given wide latitude in family law cases. However, a clear standard as enunciated by the legislature cannot be ignored.
To support the action of the trial court my colleague emphasizes that Brenda’s sister and her son live in the same household. He omits the lower court’s statement that the child is retarded. I hope the day never comes when having a retarded child living in your home can be cited as a grounds for taking away custody of your child. The dissent also points out that Brenda was on medication for her nerves. If this is a valid reason to take away custody then, based upon the sales of valium and other tranquilizers, a large portion of America would lose their children in the event of a divorce.
My colleague, in support of taking away custody from the mother, cites the fact that her 73 year old mother who is in poor health, also lives in the home. If more children took a greater interest in their parents perhaps we could all hold our heads up higher.
Brenda was repeatedly beaten by her husband. The grandparents to whom custody was awarded could hear her scream in the night because of the proximity of the homes. They admit that they knew about the beatings by their son and that they saw the bruises on Brenda. The beatings of Brenda took place even during her pregnancy and she was often forced to flee for her life. Spousal abuse is one of the greatest tragedies in our society. The evidence also suggested that the son frequently *170 lived with his parents. The effect of granting custody to the grandparents in this case may have the practical effect of granting custody to the father.
The dissent relies upon the fact that Brenda was admitted to a state mental hospital. In fact she was admitted on her own once for a period of two weeks for evaluation after which she was released. On the second time she was involuntarily admitted by her husband and father-in-law and held for only 24 hours. The severe beatings which lasted over a protracted period of time never prevented her from loving and caring for her child.
The dissent states that if the judgment of the court of appeals is affirmed, there is nothing to prevent Brenda from petitioning the trial court to change custody. This is a gross oversimplification of the Family Code. The dissent glosses over the fact that the burden on a modification of custody is completely different than the burden at the time of the divorce.
No parent should ever lose custody of their child simply because a retarded child lives in the home, they take care of an elder parent who is in poor health, or because they have been the subject of repeated beatings by their spouse. I concur in the majority opinion.