The following are summaries of selected civil opinions issued by the Third Court of Appeals during September 2023. The summaries are overviews; please review the entire opinions. Subsequent histories are current as of Oct. 9, 2023.
FAMILY LAW: Court holds fit-parent presumption did not apply in challenged modification proceeding.
Johnson v. Kimbrough, No. 03-22-00100-CV (Tex. App.—Austin Sept. 20, 2023, no pet. h.).
In a modification proceeding, a child’s maternal great-grandmother (Johnson) and father both sought appointment as sole managing conservator. The trial court limited Johnson to presenting evidence relating to the fit-parent presumption. The trial court appointed the father as the sole managing conservator and Johnson as possessory conservator. The “fit-parent presumption” is applicable when determining conservatorship in the first instance and provides that one or both parents shall be appointed managing conservator unless appointment would significantly impair a child’s physical health or emotional development.
According to the court of appeals, the fit-parent presumption applies in modifications only if the parent seeking modification was appointed managing conservator in the order sought to be modified. Here, the father was not appointed managing conservator in the original or existing orders. Thus, the court held that the fit-parent presumption did not apply.
The court further held that the trial court’s application of the “fit-parent” standard instead of the “best-interest” standard necessarily informed the factfinding function and prevented the court from determining if the error was harmful. The court reversed and remanded.