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Child Custody Dispute Between Mother and Grandmother in Texas

A recent Texas appellate case involved a child custody dispute that arose between a mom and her children’s paternal grandmother after their father committed suicide in 2014. After his death, the mother asked the trial court to appoint her managing conservator of the kids. The kids’ paternal grandmother cross-petitioned for the same appointment.

Before his death, the father had been CFO for a multinational corporation. His job required him to travel outside the country often. He met the mother in Mexico and became romantically involved with her. She immigrated to the United States, gave birth to three children, and married the father. While pregnant with the fourth child, the mother took a quick trip to Mexico to get a United States visa.

The immigrant officials denied her request for a visa on the ground that she’d previously been illegally present in the country for one or more years. For that reason, she had to stay in Mexico for 14 months waiting for a visa. Her kids stayed in the country with the father.

On a monthly basis, the father came to visit the mother and his fourth child, but he didn’t bring the kids with him for safety reasons. As a result, his mother took a more active part in her grandchildren’s lives. She moved the children into her home. She didn’t speak to the mother, although she continued to speak to the father.

About a year after the visa denial, the father asked the US Attorney General to return her to the United States. He claimed that her absence would be an extreme hardship on him. He explained his stress and anxiety were enormous wondering when his wife could come back to the country and handling questions from their three children.

The immigration authorities did issue the wife a visa in the spring of 2014. She legally reentered the United States with her youngest child and promptly reunited with her three kids. However, since school was underway, the parents permitted two of the kids to stay with the grandmother until the school year was done. That summer, they went to pick up the kids, but the father stayed in Fredericksburg, while the mother went back home with all four kids. On the next day, the kids’ father committed suicide.

Shortly thereafter, the grandmother got a judge’s order authorizing her to take possession of all four of the kids, including the youngest. She went to the mother’s home, took the kids, and went back to her home, where the kids stayed pending trial. The lower court appointed the grandmother as sole managing conservator of the kids, finding that the mother had voluntarily relinquished care, control, and possession of the kids to the grandmother and that she would impair the kids’ health and emotional development if she were conservator. She appealed.

The appellate court explained that Texas presumes that awarding conservatorship to a child’s natural parents is in the child’s best interest. A non-parent has a heavy burden in trying to rebut the presumption. Any close calls are supposed to go to the parent.

In this case, the grandmother argued that the mother had little contact with the kids while living in Mexico. The appellate court noted that this evidence didn’t show that the mother planned to relinquish her kids to the grandmother rather than the father. She also asserted her right of conservatorship after the suicide. The appellate court found that the grandmother failed to rebut the parental presumption under Texas Family Code §153.373.

It also found there was no evidence to show that the mother had engaged in any behaviors to impair her children’s physical or emotional development. She didn’t live there with the intent to abandon. The grandmother tried to show the kids were better off with her. However, this didn’t negate her lack of proof that the mother would significantly impair their development.

The appellate court reversed and sent the matter back for further proceedings.

If your divorce involves matters related to child custody, parental rights, or grandparents’ rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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