Lewelling v. Lewelling - 796 S.W.2d 164, 1990 Tex. LEXIS 119, 33 Tex. Sup. J. 742

Rule:

The applicable provision of the Family Code requires the nonparent to show that awarding custody to the natural parent "would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development. Tex. Fam. Code Ann. § 14.01(b) (1990)

Facts:

Petitioner, Brenda Lewelling, initiated a divorce from her husband and sought appointment as managing conservator of their son Jesse. Petitioner alleged that her husband had physically abused her throughout their relationship. Although her husband did not seek custody of the child, his parents, Carl and Melba Lewelling, herein respondents, intervened in the divorce proceeding to be named managing conservators. The trial court awarded temporary custody to the Department of Human Services with the right of placement. DHS opted to place the child with petitioner pending the outcome of the suit. At the close of the hearing, the trial court ordered that respondent’s be named as managing conservators of the child. They were named as possessory conservators. The court of appeals affirmed the appointment of respondents as managing conservators. Petitioner challenged the lower court’s decision.

Issue:

Did the lower court err in appointing respondents as managing conservators of the minor child?

Answer:

Yes.

Conclusion:

The court reversed the lower court and held that the best interest of the child was served by awarding custody to a natural parent. There was no evidence in the record to show that appointment of appellant as managing conservator would have significantly impaired the child's physical health or emotional development. The court held that evidence that a parent was a victim of spousal abuse, by itself, did not establish that awarding custody to that parent would significantly impair the child. Respondents, as nonparents seeking custody, failed to identify some act or omission committed by petitioner which demonstrated that naming her as managing conservator would have significantly impaired the child's physical health or emotional development. The court remanded the case for further hearings on matters relating to support of the child and visitation rights.