In October 1990, the Texas Supreme Court issued a landmark family law opinion that has shaped the law almost immeasurably.
Part of Lewelling v. Lewelling’s impact may be due to timing. In the early 1990s, the existing Family Code was being completely rewritten and revised. The Supreme Court’s decision made its way into the fabric of the new law.
The Lewellings were divorcing amidst allegations of domestic violence against the husband. Records reflected that Mr. Lewelling had put his wife in the hospital several times with serious injuries, including a concussion. Mr. Lewelling did not contest these allegations and did not seek custody of the couple’s minor son. His parents, however, filed a petition asking to be named managing conservators.
There was evidence at trial that Ms. Lewelling was not in a position to care for the child financially, that she had sent the child to live with his grandparents and did not visit him while he was there, that she wanted to reconcile with her violent husband, and she had twice been committed to the state mental hospital.
Based on this evidence, and the recommendation of a state social worker, the court appointed the grandparents as managing conservators.
The Supreme Court disagreed. Although themajority opinion claimed that the parental presumption was “deeply embedded” in Texas law, it cited only two opinions in support of this statement. One case was from 1963 and the other was from 1894.
Nevertheless, a sharply dividedCourt found that it was not enough for the grandparents to show that they were a better choice as managing conservators, which may have very well been the case in this dispute. Essentially, the grandparents had to prove that Ms. Lewelling was unfit. The opinion flatly stated that her participation in an abusive relationship, current unemployment and prior mental problems constituted “no evidence” on this point.
The parental presumption is now codified in Section 153.131 of the Texas Family Code.
In a custody case, grandparents and other nonparents, including former gay partners, must convince a jury that the other parent is incompetent. In some cases, this can be established by showing that the parent is dead or in prison. In other cases, the children’s status may provide evidence of incompetence:
If you are a nonparent who wants or needs custody of a child, call us today for a consultation at our Houston office. We’re conveniently located on the Sam Houston Parkway just east of the North Freeway.