I would like to hire a paralegal or Lawyer to organize and draft a mandamus on a Family SAPCR, Parental Abduction Case.
Original Petition was never served and several new documents on the case were fraudulently entered into court by oath. The Judge in the District was the Attorney for the Abductor who has a protection order against her(grandmother) and flew across state lines, then gave child to another party while the two parties filed a care placement using chapter 34 of family code. The mother did not approve of the agreement and it was obtained by stating that no other person has any claim to the child of their knowledge.
Temporary Orders - Mandamus Review. The Derzapf case held that temporary orders that improperly grant access to a non-parent are reviewable by mandamus. The reasoning is restated as follows: A grandparent's rights are generally subordinate to a parent's. Statutory rights extended to grandparents and other relatives can create a substantial burden on a parent's traditional role in a child's upbringing. It is cardinal that the custody, care and nurture of the child reside first in the parents. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court of the United States. Where temporary orders divest a fit parent of possession of his children, in violation of Troxel's cardinal principle and without overcoming the statutory presumption that a parent is acting in his children's best interest, such a divestiture is irremediable, and mandamus relief is appropriate.
B. Confusion About Standard/Burden of Proof
In a suit affecting the parent-child relationship, the standard of proof is a preponderance of the evidence. However, Troxel states that the parental presumption arises out of fundamental constitutional rights and liberty interests. Courts have struggled with the tension between these concepts--that a non-parent must overcome the parental presumption by showing a significant impairment to the child, but the burden of proof remains a preponderance of the evidence.
For nonparents, the standard of proof is merely preponderance of the evidence, not clear and convincing evidence. The Lewelling case attempts to explain this confusing system:
The amendatory language requiring a showing that appointment of the parent would significantly impair the child's physical or emotional development creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. The nonparent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally.
The parental presumption is a rebuttable presumption. In the law, a rebuttable presumption shifts the burden of producing evidence to the party against whom it operates. Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears and is not weighed or treated as evidence. The evidence is then evaluated as it would be in any other case, and the presumption has no effect on the burden of persuasion.
C. Bhan v. Danet
The First District Court of Appeals in Houston recently released a decision on the parental presumption in a case called Bhan v. Danet.
At the original trial, a jury appointed two non-parent men as managing conservators and appointed the natural mother as possessory conservator. The appellate court held that the evidence was legally insufficient, reversed, and rendered an order appointing the natural mother as sole managing conservator. The full opinion is attached as Appendix A to this paper. Both the majority opinion and the lengthy dissent contain in-depth analyses of the parental presumption, and the case is a must-read on that issue.
The Texas Supreme Court requested full merits briefing on October 18, 2013, and the case is now pending on merits briefs before that court.
D. Modification Suits
The Texas Supreme Court has held that, because of the differing public policies in an original suit compared to a modification, the parental presumption does not apply in any modification suit. The reasoning of the V.L.K. case is restated as follows:
There is a difference between an original conservatorship determination and a modification: Because a change of custody disrupts the child's living arrangements and the channels of a child's affection, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child. Courts of appeals have consistently recognized that the parental presumption does not apply in modification suits. These cases emphasize the policy concern that trial court should not change custody unless it is a positive improvement because of the child's need for stability.
The parental presumption disappears even if the parties to the modification are not the same as the parties in the original suit. The courts' decisions do not depend upon the parties' identities as a basis for not applying the parental presumption in a modification suit. Likewise, the Family Code does not provide that the presumption is affected by the parties involved in the suit. Rather, the Legislature included the presumption in Chapter 153 which governs original proceedings, but did not include the presumption in Chapter 156 which governs modifications.
Chapter 153 and Chapter 156 are distinct statutory schemes that involve different issues. Chapter 156 modification suits raise additional policy concerns such as stability for the child and the need to prevent constant litigation in child custody cases. The Legislature has determined that the standard and burden of proof are different in original and modification suits. Compare Tex. Fam.Code § 153.134 with Tex. Fam.Code § 156.101. A natural parent has the benefit of the parental presumption in an original proceeding, and the nonparent seeking conservatorship has a higher burden. However, the Legislature did not impose different burdens on parents and nonparents in modification suits. When we construe a statute, our primary objective is to give effect to the Legislature's intent. Because the Legislature did not express its intent to apply the presumption in Chapter 156 modification suits, courts should not apply the presumption in those cases. In a modification suit, the court should instruct the jury by tracking the language of Family Code 156.101, which requires the parties to show that (1) circumstances of a party affected by the order have materially and substantially changed; and (2) modification would be a positive improvement for the child.
As discussed above, the legal regime for modifying an order is different from the legal burdens and presumptions for establishing an original order.
A. Conservatorship and Possession
Under the Texas Family Code, there are three grounds to modify a SAPCR order:
Tex. Fam. Code § 156.101. Grounds for Modification of Order Establishing Conservatorship or Possession and Access.
(a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed....;
(2) the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or
(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
The most frequent ground for modification is that the circumstances of a party affected by the order have materially and substantially changed; and the requested modification would be in the best interest of the child
When a conservatorship order has been implemented, the concept of res judicata attaches, and the order establishes what was in the child's best interest at the time of the divorce. A determination of whether a material change in circumstances has occurred is not guided by rigid rules, but is, instead, fact-intensive. A movant is required to show the conditions as they existed at the time of entry of the prior order. Once such conditions have been established, the movant must show what material changes have occurred in the intervening period. This evidence must be put into the record even in a default judgment where the responding party fails to answer or appear, or the modification order may be reversed as an abuse of discretion. Material changes may be established by circumstantial evidence. Courts have found the following to be material changes: (1) marriage of one of the parties, (2) poisoning of the child's mind by one of the parties, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, or (5) a parent's becoming an improper person to exercise custody.
do NOT contact me with unsolicited services or offers