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Family Law Click here for the full text of this decision FACTS:When mother and father divorced in 1989, mother was named sole managing conservator of the couple’s two babies. Mother moved to be near her mother (grandmother) and other family, and father moved out of state, maintaining only sporadic contact with the children, leading a court in 1999 to enter a judgment for child support arrearages against father. Grandmother moved in with mother in June 2000 when mother was diagnosed with cancer. Mother died almost a year later. Father immediately obtained a writ of habeas corpus granting him immediate possession of the children. Father did, however, allow the children to keep living with grandmother. A week later, at the children’s request, grandmother filed a suit affecting the parent child relationship, asking that she and father be named joint managing conservators of the children but that she have the exclusive right to determine the children’s primary residence. Five months later, the trial court ordered father to pay additional support payments to grandmother, and to collect on the 1999 judgment. Father then filed a “Petition to Modify Parent-Child Relationship.” After an initial ruling in father’s favor, the children filed a plea in intervention, asking to stay with grandmother. The court granted father’s no-evidence summary judgment motion, which was based on his assertion that the parental presumption required grandmother to prove under Family Code �153.131 that father’s appointment as managing conservator would significantly impair the children’s health or emotional well-being. grandmother responded that the parental presumption did not apply to modification proceedings, which is what father’s petition was. The trial court granted father’s no-evidence summary judgment, struck the children’s plea in intervention, and implicitly denied all relief sought by grandmother in her SAPCR. grandmother perfected this appeal. HOLDING:Reversed and remanded. The grandmother’s and father’s suits are modification proceedings, and the parental presumption does not apply in modification proceedings, the court rules. Grandmother’s SAPCR suit was filed in the court with original jurisdiction over mother and father’s divorce decree, under the same cause number as that proceeding, and explained that the children’s original sole managing conservator had died. Likewise, as father admits, father’s suit is one to modify the original agreement, too. So, too, was the children’s plea to intervene. Notwithstanding these characterizations, father asserts that the one-time parental presumption always applies to the first custody suit between a parent and a non-parent, that it can’t apply to the original custody determination. He relies on a passage in In re V.L.K., 24 S.W.3d 338 (Tex. 2000), that reads: “there is no presumption that a parent should be appointed managing conservator if there has previously been an order of custody awarding conservatorship to a third party, or if the parent has voluntarily relinquished actual care, control, and possession of the child to a non-parent for a period of one year or more[.]“ Examining the Supreme Court’s analysis in V.L.K., the court rules that contrary to father’s interpretation, it is not the identity of the parties that determines whether a suit is an original suit or a suit to modify. Rather, because of policy concerns, such as stability for children, “once custody, even between two parents, is established by court order, the parental presumption does not apply to any subsequent custody proceeding regardless of the parties involved.” The court goes on to say that Family Code �� 156.002(b) and 102.003(a)(11) specifically authorizes modification of a prior order following the death of a managing conservator, and that grandmother’s SAPCR suit was filed within the parameters of these statutes. Consequently, father’s subsequent suit cannot be an original suit to which the parental presumption would apply. OPINION:Walker, J.; en banc. DISSENT:Cayce, C.J.; joined by Day and Holman, JJ. “As appellate judges deciding questions of statutory construction, we should not be substituting judicial intent for legislative intent. While the ramifications of interpreting the modification provisions of chapter 156 as the legislature intended may personally trouble us under the facts of this case, our role as judges requires that we put aside our own personal views of what we might like the statute to mean, and impartially interpret and apply the law as written by the legislature.” The dissent disagrees with the majority’s interpretation of V.L.K. and other Supreme Court precedent, and surmises that the majority opinion will lead to absurd results.

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