You are an aunt, uncle, grandparent, stepparent, or someone with a third party relationship to a child. And, you are interested in seeking custody of the child because you have established a strong and lasting bond with this child. However, in seeking such, you realize that you do not have an easy road ahead of you. That is when you contact your attorney at Guest & Gray in Kaufman County.
Your attorney advises you that in an original proceeding to establish the parent-child relationship, there is a parental presumption when it comes to conservatorship–parents should be appointed as conservators unless there’s reason to the contrary. However, the 14th District Houston Court of Appeals in In the Interest of R.T.K. made the distinction that in modification proceedings, this parental presumption doesn’t exist. Thus, in modification suits, conservatorship is ultimately determined upon the best interests of the child.
Despite this, in both original and modification proceedings, if you can produce evidence that appointment of a parent as conservator would significantly impair the child’s physical health or emotional development, then that would be sufficient to appoint a non-parent as conservator.
In the R.T.K. case, it was a stepmother vs. mother and the stepmother eventually prevailed based upon the facts and evidence presented. This case supports those nonparents who have practically raised the child and who have provided stability to the child’s life. From a court’s standpoint, this would of course support child’s emotional and physical development.
However, expanding upon this, when looking at the nonparent vs. the parent, the Fort Worth Court of Appeals made it clear in In the Interest of K.R.B. that it is measured by the parent’s “present unfitness”. This means that if the parent’s past is rocky, but they’ve since been rehabilitated, then that weighs in favor of them being appointed conservator of the child. For instance, in that case, the mother was addicted to meth and had a criminal history. However, at the time of trial, the mother had undergone rehabilitation treatment and as part of her probation, produced several negative drug tests.
Therefore, the lesson being from this particular case that if a nonparent wants to maintain or secure conservatorship of the child, then they must act based upon the parent’s present unfitness.