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Click here for the full text of this decision FACTS:Tammy Renee Whitworth and Douglas Whitworth married in August 2000 but separated in September or October 2000. Douglas filed for divorce on Dec. 20, 2000. Tammy filed for divorce on Dec. 23, 2000. The trial court consolidated the two divorce filings. Tammy and Douglas’ only child, K.C., was born on June 13, 2001. By an order entered Nov. 30, 2001, Tammy was given custody of K.C. and Douglas was given two hours a day visitation five days a week. On Oct. 18 and 21, 2002, the trial court heard the parties’ applications for temporary custody orders pending the divorce. Although there is no transcript of that hearing, testimony from another hearing indicated that the court heard testimony that Tammy had repeatedly denied Douglas access to K.C., Tammy alleged that Douglas had sexually abused another child of hers (who had a different father) and she feared his unsupervised visitation with K.C. The testimony further indicated that during the course of the hearing on Oct. 18, the associate judge ordered Tammy to have her mother Gayle Cash bring K.C. to the court and warned her numerous times that she would be held in contempt if she did not. Tammy disobeyed the order. The trial court also ordered Tammy to have her mother bring K.C. to court for the Oct. 21 continuation of the hearing. The docket sheets reflect that, at the end of the Oct. 18 hearing, the trial court found Tammy in contempt and sentenced her to 10 days in jail for “continuous parental alienation against father through repeated visitation/access denials and behavior in court.” Also on Oct. 18, Carol Whitworth, Douglas’ mother, filed an original petition for intervention, relying on Texas Family Code �102.004(a)(1), which grants grandparents standing to seek managing conservatorship of a child when the child’s environment presents a serious question concerning the child’s physical health or well-being, or when both parents consent. Tammy stayed in jail for the weekend and appeared in court for the continuation of the hearing on Oct. 21. At the end of the hearing, the associate judge entered an order appointing Carol, the non-parent intervenor, as temporary sole managing conservator of K.C. and Tammy and Douglas as temporary possessory conservators with only supervised rights of possession for four hours every other week through the SAFE Supervised Visitation Program (SAFE). The Oct. 21 docket sheet stated that Tammy and her mother, Gayle Cash, had “exercised continuous parental alienation against father through repeated visitation/access denials and behavior in court during this hearing” and that supervised visitation was ordered because of the seriousness of the allegations against Douglas and the fact that the court deemed Tammy a flight risk. The court ordered psychological evaluations of Tammy, Douglas and Carol by Dr. Edward Silverman. Tammy and Douglas were ordered to pay Carol child support for K.C. and to ensure the maintenance of health insurance for K.C. The court also enjoined Tammy from telephoning Carol and from going within 50 feet of Carol’s residence. The court also appointed a guardian ad litem for K.C., ordered Tammy and Douglas to share the ad litem’s fees and ordered Douglas to pay spousal support to Tammy. Starting on April 13, 2004, the trial court heard evidence to determine custody of K.C. The trial court entered a final decree of divorce on May 17, 2004, declaring that neither Tammy nor Douglas could be the managing conservator of K.C. on the grounds that it would not be in the best interest of the child. The decree ordered that Carol, the nonparent intervenor, be appointed as the sole managing conservator of K.C. On June 14, 2004, Tammy filed a motion for new trial, which the trial court denied. Tammy appealed from the trial court’s custody determination. HOLDING:Reversed and remanded. The court first examined the threshold issue of whether Carol had standing to intervene in Tammy and Douglas’ divorce to seek managing conservatorship of K.C. The Family Code provides that a suit requesting managing conservatorship may be filed under �102.004(a) by a grandparent as necessary when the child’s present environment presents a serious question concerning the child’s physical health or welfare. Carol, the court stated, has burden of proof on the issue of standing to initiate the suit. When a grandparent, the court stated, seeks managing conservatorship of a child under Texas Family Code �102.004(a), the trial court must make a threshold finding of serious and immediate concern for the welfare of the child based upon a preponderance of the evidence before the grandparent has the right to sue for custody. Carol, the court stated, did not allege any facts to support her intervention to seek managing conservatorship of K.C. The court also found there was not a scintilla of evidence in the record that K.C. was in imminent danger of physical or emotional harm from Tammy. The court concluded that the trial court failed to make the requisite threshold factual findings that K.C. was in imminent danger of physical or emotional harm in Tammy’s care and that immediate action was necessary to protect her from Tammy. As a result, the court held that Carol lacked standing to sue for custody. The court also found the custody award unjustified under Texas Family Code �153.131, which provides that a trial court can award a nonparent custody if the appointment of the parent or parents would significantly impair the child’s physical health or emotional development. The record, the court found, contained no evidence of specific, identifiable behavior on Tammy’s part that would result in significant impairment of K.C.’s physical health or emotional development. OPINION:Keyes, J.; Nuchia, Keyes and Hanks, J.J.

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