K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about rearing a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Because T.S. and K.V. wanted to maintain some continuity for the child, they agreed on a schedule allowing K.V. regular access to and possession of the child. Under the agreement, M.K.S. would visit K.V. overnight once a week, alternate Sunday afternoons, and on alternate weekends beginning on Friday afternoons during the school year. During the summer, the weekend visits would sometimes start on Thursday afternoon. M.K.S. also visited K.V. on “some holidays.” This schedule began August 5, 2005 and continued until April 25, 2007 when T.S. discontinued the visits because K.V. had accessed M.K.S.’s school record against T.S.’s “directive.” The following month, K.V. filed suit seeking to be appointed joint managing conservator of M.K.S. or, in the alternative, to adopt her.

I recall this case getting some media attention because the parties were lesbian lovers. Interesting to note the Court did not mention this fact in the entire case. Unlike most cases the parties here had an actual written possession schedule they generally seemed to follow yet TS maintained that KV had no standing. The appeals court found that in this case, the possession agreement between the parties shared characteristics of a standard possession order, MKS had her own room at KV’s house, KV had toys for MKS, KV would pick the child up from school when she was sick, KV was listed as a parent at the school for pick up purposes, and similar parental duties, actions and obligations that are indicative of being a parent. The found that the record did not suggest the possession and care giving was intended to be a temporary arrangement. For these reasons the appeals court remanded the case and found error when the trial court dismissed KV’s claims. Remanded.

In re Y.B. 300 S.W.3d 1

Here are the facts as reported from the case: Swift and Tina Bruno have known each other for over ten years. In December of 2004, Bruno traveled to the Ukraine to adopt three girls. Bruno is the girls’ only legal parent. On April 22, 2007, Swift and Bruno married. On January 21, 2008, Swift moved out of Bruno’s house. He filed a suit affecting the parent-child relationship (“SAPCR”) on March 10, 2008. A week later, Bruno filed a plea to the jurisdiction and motion to dismiss, challenging Swift’s standing to bring a SAPCR. Conflicting testimony was presented regarding whether Swift met the requisite amount of time required to establish standing under the Family Code. The trial court granted Bruno’s plea to the jurisdiction and motion to dismiss, and awarded Bruno $4,000 in attorney’s fees. In its findings of fact and conclusions of law, the trial court found that Swift did not have actual care, control, and possession of the children for at least six months. The trial court concluded that Swift lacked standing under section 102.003(a)(9) of the Family Code to bring a SAPCR. Swift now appeals.

The majority held the Trial Court erred by dismissing the lawsuit because Swift raised a fact issue on whether he is and was in fact a parent.

Justice Rebecca Simmons filed a dissenting opinion. She felt “At best, the evidence shows Swift lived in Bruno’s home for approximately nine months. According to Swift, he would: sometimes put cereal out for the children in the morning; eat dinner with the family; drive the children to school; help with homework; take the children fishing; bath the youngest child; and the girls called him “Daddy.” Justice Simmons felt these activities are typical of those undertaken by stepparents and felt the majority’s broad interpretation of 102.003 would give almost anyone involved with children for more than six months standing to file SAPCR. Justice Simmons cites, Troxel as a parent’s fundamental right to make decisions for their children as well as In the Interest of M.J.G. 248 S.W.3d 753 where the grandparents of MJG had a heck of a lot more involvement with the children than Swift had with YB and the Motion to Strike was granted in the MJG case. Based on the evidence in this case there was no fact issue because there were no facts establishing Swift mad any decisions at all concerning the health, education and welfare under the M.J.G. standard. Seems like Justice Simmons got it right. Under the majority’s standard, almost anyone would qualify for standing because the burden to create a fact issue on this is so low.

Here are the background facts of the Abbott’s:

Timothy Abbott, a British citizen, married respondent Jacquelyn Vaye Abbott, a U.S. citizen, in England in 1992. Their son A.J. was born 1995. Sometime in 1998, the Abbotts moved to Chile, where Mr. Abbott had accepted a new job.

The Abbott’s separated in March 2003. Litigation in the Chilean family courts produced various court orders. The first, entered in January 2004, granted Mr. Abbott “direct and regular” visitation rights. The second, entered in November 2004, left daily care and control of A.J. with the Ms. Abbott. The third, entered in February 2005, expanded Mr. Abbott’s visitation rights to include a full month of summer vacation. The fourth, entered on January 13, 2004, prohibited both parents from removing A.J. from Chile without written authorization from the court. In addition to the Chilean family court ne exeat order, petitioner also held a ne exeat right under a Chilean statute that requires authorization from a parent having visitation rights before the other parent may take a child out of Chile.

In July 2005, Mr. Abbott sought an order from Chilean courts that would have expanded his rights with respect to his son. Shortly thereafter, in August 2005, Ms. Abbott took A.J. out of Chile without Mr. Abbott’s knowledge or the court’s consent. Mr. Abbott hired a private investigator and, four months after the removal, located his son in Texas.

Mr. Abbott filed suit in federal district court in Texas, seeking to have his son returned to Chile pursuant to the Hague Convention. The district court denied Mr. Abbott’s request. The court concluded that the removal was not “wrongful” within the meaning of the Hague Convention because Mr. Abbott’s ne exeat right did not constitute a right of custody under the Convention.

On appeal, the Fifth Circuit affirmed. The Fifth Circuit acknowledged that the other Federal Circuit Court were divided;

- the Second Circuit held that ne exeat doesn’t create a custody right. Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), cert. denied, 534 U.S. 949 (2001)

- the Eleventh Circuit held that ne exeat did create a custody right. Furnes v. Reeves, 362 F.3d 702 (11th Cir.), cert. denied, 543 U.S. 978 (2004)

My guess is that the Supreme’s will hold it does not, by itself, create a custody right. The Chilean custody order clearly gives the mother the superior custody right – the right to determine the primary residence of the child. The Hague Convention specifically differentiates between ‘custody rights’ and ‘visitation rights” My sense is that unlike in the United States where our laws are designed to create and encourage a post-separation coparenting environment, that most of the other countries opt for a custody arrangement whereby one parent has the majority of the parenting rights and the noncustodial parent’s rights are relegated inferior to those of the custodial parent. If you take the literal meaning of the Hague Convention on this issue I think it is a stretch to hold otherwise. Presumably, the other signatory countries, besides the United States, signed and ratified the treaty because it’s congruent with their ideas and beliefs about post divorce and post separation child rearing. To hold otherwise would not only confer rights to Mr. Abbott he specifically did not have, it could have the unintended effect of having signatory countries deratify the treaty.

Thankfully, 153.315 was reincarnated that should fix this. This section was modified to include a student holiday or teacher in-service day as a holiday and to change the term “holiday” to “student holiday”. The purpose of this code section is to mirror the language used by most school district so the possession schedule makes sense. The problem parents were running into is that their stated Court Ordered parenting time was ambiguous because the language used in the possession schedule was different than that used by the school. The revised statute should go along way in avoiding future disagreements.

The Court affirmed the Trial Courts ruling that it did not have jurisdiction to maintain a divorce but overruled the Trial Courts ruling returning the children after exercising emergency jurisdiction. On a side note, it appears at the time of ruling from the Court of Appeals no one is sure where the mother or the children are located and she may have fled the jurisdiction of the Court. The COA’s ruled the Trial Court has temporary emergency jurisdiction when children are present in the state and have been abandoned or are subject to mistreatment or abuse. This exercise of jurisdiction is reserved for extraordinary circumstances. Nothing in the record justified trial court’s exercise of temporary emergency jurisdiction in this case.

It seems as if the mother’s location isn’t publicly known and potentially returned to either China or Singapore then the father has no remedy at law to seek parenting rights. If this is the case, then I don’t follow the COA’s reasoning the children were not in a state or condition of abuse. In all practicality, they are going to grow up without one of their parents by the unilateral acts of one of the parents. I’m pretty sure this is a form of abuse.

Under the law that was in effect prior to September 1^st 2009 the written preference was most often used in a Temporary Order setting where one party would be asking for a change in the custody arrangement. The written preference was a tool in the litigator’s toolbox that entitled a litigant to a hearing based on the written preference. While well intentioned by the legislature, this change conceivably could have some dramatically negative consequences with families faced with these circumstances. Theoretically, under the current law the party who has been chosen by the child to designate primary residence now has to rely on another basis to change primary custody. Since the remaining two grounds are either (1) voluntary relinquishment of the child for six months or (2) the child’s current living environment significantly impairs the physical health and emotional development, and the former is a very fact specific situation that applies to a very limited set of circumstances then most parties are going to fall under ground (2) which is significant impairment.

This author find this problematic for a variety of reasons. First, as a litigator you want to steer parents out of and away from custody court unless one parent is clearly unfit and not acting in a child’s best interests. The harmful effects that contentious and acrimonious custody litigation have on the child and the parents are immediate, severe and long lasting. The child’s written preference was a tool that allowed the litigator, on behalf of the parent, to enter custody litigation with the simple stated purpose of following a child’s stated desire where that child has lived (assuming the child has the requisite level of maturity to make such a decision). It allowed the litigator to avoid spewing needless and unnecessary venom at the opposing party. That tool is now gone.